SB221: Bill Text

LRB-2135/2

GMM:jlg:km

1999 - 2000 LEGISLATURE

1999 Senate BILL 221

August 24, 1999 - Introduced by Senator Baumgart, by request of Jerry McCabe. Referred to Committee on Judiciary and Consumer Affairs.

SB221,1,7 An Act to renumber and amend 69.14 (1) (g), 69.14 (1) (h), 891.40 (1) and 891.40 (2); to amend 46.03 (7) (bm), 48.02 (13), 49.141 (1) (j) 2., 115.76 (12), 146.34 (1) (f), 767.47 (9), 891.40 (title), 891.41 (1) (intro.) and 938.02 (13); and to create 69.14 (1) (g) 2., 69.14 (1) (h) 1. to 6., 891.40 (1d), 891.40 (2) (title), 891.40 (3), 891.403 and 891.41 (1m) of the statutes; relating to: presumption of parenthood when the egg or sperm is donated or when a surrogate mother gives birth to the child.

Analysis by the Legislative Reference Bureau

Under current law, the husband of a woman who is artificially inseminated with the semen of a man who is not her husband is presumed to be the natural father of a child conceived as a result of the procedure. This bill makes that presumption inapplicable to the husband of a woman who is artificially inseminated under a surrogate parenting agreement, which is defined in the bill as an agreement under which a surrogate mother agrees to become impregnated through other than natural means and to relinquish the custody of the child born as a result of the pregnancy to an intended father and an intended mother who are married to each other and who intend to have parental rights and responsibilities over the child. In that case, the natural father of the child is presumed to be the intended father under the agreement and not the husband of the surrogate mother.

The bill also creates a presumption of maternity for when a woman is implanted with an egg donated by another woman. In that case, the woman who is implanted with the egg and who gives birth to the child is presumed to be the natural mother of the child, unless the child is born as a result of a surrogate parenting agreement, in which case the intended mother is presumed to be the natural mother of the child, notwithstanding that the surrogate mother gave birth to the child and regardless of who provided the egg.

Under current law, if a child is born to a surrogate mother, information about the surrogate mother must be entered on the child's birth certificate and information about the father must be omitted. If a court determines parental rights over the child, the state registrar of vital statistics must prepare and register a new birth certificate and impound the original birth certificate. This bill provides that if the intended parents of a child who is born to a surrogate mother submit to the state registrar within 365 days after the date of birth of the child a copy of the surrogate parenting agreement, together with affidavits sworn to by the surrogate mother, her husband, if any, the intended father and the intended mother indicating that each affiant consents to the preparation and registration of a new birth certificate, the state registrar must prepare and register a new birth certificate showing, among other things, the given name and surname of the registrant as requested by the intended parents and the names and personal information of the intended parents.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB221, s. 1 Section 1. 46.03 (7) (bm) of the statutes is amended to read:

SB221,3,4 46.03 (7) (bm) Maintain a file containing records of artificial inseminations under s. 891.40 (2) (a), egg donations under s. 891.40 (3) (a) and records of declarations of paternal interest under s. 48.025 and of statements acknowledging paternity under s. 69.15 (3) (b). The department shall release these records only upon an order of the court except that the department may use nonidentifying information concerning artificial inseminations and egg donations for the purpose of compiling statistics and except that records relating to declarations of paternal interest and statements acknowledging paternity shall be released to the department of workforce development or a county child support agency under s. 59.53 (5) without a court order upon the request of the department of workforce development or a county child support agency under s. 59.53 (5) pursuant to the program responsibilities under s. 49.22 or by any other person with a direct and tangible interest in the record.

SB221, s. 2 Section 2. 48.02 (13) of the statutes is amended to read:

SB221,3,13 48.02 (13) "Parent" means either a biological parent, a husband who has consented to the artificial insemination of his wife under s. 891.40 (2) (a), a wife who gives birth as a result of an egg donation under s. 891.40 (3) (a), or a parent by adoption. If the child is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60, "parent" includes a person acknowledged under s. 767.62 (1) or a substantially similar law of another state or adjudicated to be the biological father. "Parent" does not include any person whose parental rights have been terminated.

SB221, s. 3 Section 3. 49.141 (1) (j) 2. of the statutes is amended to read:

SB221,3,17 49.141 (1) (j) 2. A person who has consented to the artificial insemination of his wife under s. 891.40 (2) (a) or a wife who gives birth as a result of an egg donation under s. 891.40 (3) (a).

SB221, s. 4 Section 4. 69.14 (1) (g) of the statutes is renumbered 69.14 (1) (g) 1. and amended to read:

SB221,4,2 69.14 (1) (g) 1. If Subject to subd. 2., if the registrant of a birth certificate under this section is born as a result of artificial insemination under the requirements of s. 891.40 (2) (a), the husband of the woman shall be considered the father of the registrant on the birth certificate. If the registrant is born as a result of artificial insemination which does not satisfy the requirements of s. 891.40 (2) (a), the information about the father of the registrant shall be omitted from the registrant's birth certificate.

SB221, s. 5 Section 5. 69.14 (1) (g) 2. of the statutes is created to read:

SB221,4,6 69.14 (1) (g) 2. If the registrant of a birth certificate under this section is born as a result of artificial insemination under a surrogate parenting agreement, the birth certificate shall be completed as provided under par. (h).

SB221, s. 6 Section 6. 69.14 (1) (h) of the statutes is renumbered 69.14 (1) (h) (intro.) and amended to read:

SB221,4,25 69.14 (1) (h) Surrogate mother. (intro.) If the registrant of a birth certificate under this section is born to a surrogate mother, information about the surrogate mother shall be entered on the birth certificate and the information about the father shall be omitted from the birth certificate. If a court determines parental rights over the registrant, the clerk of court shall report the court's determination to the state registrar on a form prescribed by the state registrar, along with the intended parents under a surrogate parenting agreement submit to the state registrar within 365 days after the date of birth of the child a copy of the surrogate parenting agreement and the fee required under s. 69.22. Upon receipt of the report, together with affidavits sworn to by the surrogate mother, her husband, if any, the intended mother and the intended father on a form prescribed by the state registrar indicating that each affiant consents to the preparation and registration of a new birth certificate, the state registrar shall prepare and register a new birth certificate for the registrant under s. 69.15 (6) and send a copy of the new certificate to the local registrar who filed the original certificate. Upon receipt of the copy, the local registrar shall destroy his or her copy of the replaced certificate and file the new certificate. The new birth certificate shall show all of the following:

SB221, s. 7 Section 7. 69.14 (1) (h) 1. to 6. of the statutes are created to read:

SB221,5,3 69.14 (1) (h) 1. The given name and surname of the registrant as requested by the intended parents.

SB221,5,4 2. The date and place of birth as transcribed from the original certificate.

SB221,5,5 3. The names and personal information of the intended parents.

SB221,5,6 4. The hospital and time of birth as unknown.

SB221,5,7 5. The filing date on the original certificate.

SB221,5,8 6. Any other information necessary to complete the new certificate.

SB221, s. 8 Section 8. 115.76 (12) of the statutes is amended to read:

SB221,5,24 115.76 (12) "Parent" means a biological parent; a husband who has consented to the artificial insemination of his wife under s. 891.40 (2) (a); a wife who gives birth as a result of an egg donation under s. 891.40 (3) (a); a male who is presumed to be the child's father under s. 891.41; a male who has been adjudicated the child's father under subch. VIII of ch. 48, under ss. 767.45 to 767.51, by final order or judgment of an Indian tribal court of competent jurisdiction or by final order or judgment of a court of competent jurisdiction in another state; an adoptive parent; a legal guardian; a person acting as a parent of a child; a person appointed as a sustaining parent under s. 48.428; or a person assigned as a surrogate parent under s. 115.792 (1) (a) 2. "Parent" does not include any person whose parental rights have been terminated; the state or a county or a child welfare agency if a child was made a ward of the state or a county or child welfare agency under ch. 880 or if a child has been placed in the legal custody or guardianship of the state or a county or a child welfare agency under ch. 48 or ch. 767; or an American Indian tribal agency if the child was made a ward of the agency or placed in the legal custody or guardianship of the agency.

SB221, s. 9 Section 9. 146.34 (1) (f) of the statutes is amended to read:

SB221,6,7 146.34 (1) (f) "Parent" means a biological parent, a husband who has consented to the artificial insemination of his wife under s. 891.40 (2) (a), a wife who gives birth as a result of an egg donation under s. 891.40 (3) (a) or a parent by adoption. If the minor is a nonmarital child who is not adopted or whose parents do not subsequently intermarry under s. 767.60, "parent" includes a person adjudged in a judicial proceeding under ch. 48 to be the biological father of the minor. "Parent" does not include any person whose parental rights have been terminated.

SB221, s. 10 Section 10. 767.47 (9) of the statutes is amended to read:

SB221,6,11 767.47 (9) Where a child is conceived by artificial insemination, the husband of the mother of the child at the time of the conception of the child is the natural father of the child, as provided in s. 891.40 (2) (a).

SB221, s. 11 Section 11. 891.40 (title) of the statutes is amended to read:

SB221,6,13 891.40 (title) Artificial insemination and egg donation.

SB221, s. 12 Section 12. 891.40 (1) of the statutes is renumbered 891.40 (2) (a) and amended to read:

SB221,7,5 891.40 (2) (a) If, by or under the direction or supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband of the mother at the time of the conception of the child shall be the natural father of a child conceived , unless the wife is inseminated artificially under a surrogate parenting agreement, in which case the intended father under the surrogate parenting agreement shall be the natural father of a child conceived. The husband's consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and shall file the husband's consent with the department of health and family services, where it shall be kept confidential and in a sealed file except as provided in s. 46.03 (7) (bm). However, the physician's failure to file the consent form does not affect the legal status of father and child. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, may be inspected only upon an order of the court for good cause shown.

SB221, s. 13 Section 13. 891.40 (1d) of the statutes is created to read:

SB221,7,7 891.40 (1d) Definitions. In this section and s. 891.403:

SB221,7,10 (a) "Intended father" means a man who is married to an intended mother and who intends to have the parental rights and responsibilities for a child born as a result of a surrogate parenting agreement.

SB221,7,13 (b) "Intended mother" means a woman who is married to an intended father and who intends to have the parental rights and responsibilities for a child born as a result of a surrogate parenting agreement.

SB221,7,15 (c) "Intended parents" mean an intended father and an intended mother who are married to each other and who enter into a surrogate parenting agreement.

SB221,7,17 (d) "Surrogate mother" means a woman who enters into a surrogate parenting agreement.

SB221,7,21 (e) "Surrogate parenting agreement" means an agreement under which a surrogate mother agrees to become impregnated through other than natural means and to relinquish to the intended parents the custody of the child born as a result of the pregnancy.

SB221, s. 14 Section 14. 891.40 (2) (title) of the statutes is created to read:

SB221,7,23 891.40 (2) (title) Artificial insemination.