891.40 Artificial insemination.

(1) If, under the 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. 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 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.

(2) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is not the natural father of a child conceived, bears no liability for the support of the child and has no parental rights with regard to the child.

History: 1979 c. 352; 1983 a. 447; 1995 a. 27 s. 9126 (19); 2007 a. 20 s. 9121 (6) (a).

Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation. The surrogacy agreement in this case was enforceable except for the portions of the agreement requiring a voluntary termination of parental rights (TPR). The TPR provisions did not comply with the procedural safeguards set forth in s. 48.41 for a voluntary TPR because the biological mother would not consent to the TPR and there was no legal basis for involuntary termination. The TPR provisions were severable. Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634, 11-2166.

The Department of Health Services's practice before May 2, 2016 of enforcing sub. (1) against female married couples but not different-sex couples was unconstitutional. The department is to construe sub. (1) in gender-neutral terms. In particular, the word “husband" in sub. (1) should be construed to mean “spouse." Torres v. Seemeyer, 207 F. Supp. 3d 905 (2016).

The Department of Health Services is directed to construe sub. (1) in gender-neutral terms. In particular, the word “husband" should be construed to mean “spouse." Torres v. Seemeyer, 207 F. Supp. 3d 905 (2016). See also Pavan v. Smith, 582 U.S. ___, 137 S. Ct. 2075, 198 L. Ed. 2d 636 (2017).

Wisconsin's Undeveloped Surrogacy Law. Walsh. Wis. Law. March 2012.

Out of Sync: Assistive Reproductive Technology & Parentage Law. Walsh. Wis. Law. May 2017.