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'Activist judge' compares surrogacy to human trafficking

by Daniel BiceMilwaukee-Wisconsin Journal Sentinel
July 24th, 2016

Close-up of a baby sleeping on his father's chest; the father's eyes are also closed.

Jay Timmons and Rick Olson expected little legal trouble when they filed papers in Dane County Circuit Court last year to become the fathers of a son through a surrogate mother in Wisconsin.

They had good jobs — Timmons, 54, was the head of the pro-business National Association of Manufacturers, and Olson, 49, was a federal lobbyist for Capital One.

They were married in 2008 and have been together for 25 years. They also had two daughters through surrogacy. They had more than 150 letters of recommendation.

And Wisconsin courts tend to rubber-stamp these lightly regulated arrangements, especially when no one is contesting the matter, as was the case here.

But that didn't happen.

Timmons and Olson were plunged into a yearlong legal morass that has cost them $400,000 in legal expenses — on top of the $35,000 they paid the surrogate mother and $12,500 to a surrogacy agency.

Olson even had to quit his job to take up the legal case full time.

Then-Dane County Circuit Judge James Troupis appointed a guardian ad litem who billed the couple an astounding $100,000 while preparing a report and brief that called into question changes in the traditional family structure.

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.

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.

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.

"Human trafficking comes in many forms," Troupis wrote in the opening sentence of his March 25 decision.

"The child here was a gift from another couple, made possible by payment to an agency and to a mother," Troupis wrote later in his ruling. "Can any such agreement be made without violating human trafficking laws?"

The case has taken several turns since that decision was handed down.

Troupis is no longer on the bench, having resigned less than a year after being appointed by Gov. Scott Walker. He recently failed in his bid to land a seat on the state Supreme Court.

Another Dane County judge has reversed Troupis' ruling, calling it "unduly harsh," "weird" and "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.

And Timmons and Olson now have their son, Jacob, who will turn 1 on Aug. 17.

But the pair, who live in McLean, Va., are still stinging from the entire experience at the hands of the Wisconsin judicial system.

"If we don't speak up about this, there's going to be another judge that tries the same thing," Olson said.

"This hopefully will put judges in check," Timmons said. "They need to understand that they have one job, and that's to apply the law.

"It is never in the best interest of a child to proactively and knowingly make the child an orphan."

Troupis, who has returned to private practice, declined to discuss the case last week.

"As a judge, I cannot as an ethical matter comment on a matter that was before me that remains pending," said Troupis, long a force in Republican circles.

The guardian ad litem, Mark Knutson of Brookfield, also refused to comment. "Because the nature of this case, i.e. confidential, and my ethical responsibilities, I am not at liberty to comment," Knutson wrote in an email.

The records in the case are not public but were provided to the Milwaukee Journal Sentinel by sources not directly involved in the legal dispute.

Timmons and Olson ended up in Wisconsin through a circuitous route.

Nearly three years ago, they were offered two frozen embryos from a heterosexual couple as a gift. The couple needed to use in vitro fertilization to have their four children but were left with two unused embryos, which they didn't want to destroy.

Timmons and Olson already had two daughters, who are now 5 and 6.

"They had gotten to see us with our daughters and how we were raising them," Timmons said. "They asked us if we would take the embryos and raise them as our children. We accepted the offer."

Before moving forward, however, Timmons and Olson spent nearly a year researching surrogacy laws around the country.

They decided not to pursue surrogacy in their home state because it did not recognize same-sex marriages at the time. Virginia law also requires one of the parents in a surrogacy agreement to be genetically related to the child.

The couple found 12 states that would provide them a "pathway to parentage." They settled on Wisconsin because a federal judge had overturned the state's ban on same-sex marriage in 2014 and courts here had allowed same-sex couples to be recognized as parents of a child born through surrogacy.

While that is true, it's also the case that Wisconsin law says little about surrogacy other than to recognize its existence in a section of the code on what to do on birth certificates in such cases. The Journal Sentinel wrote about the state's cursory surrogacy laws in a 2012 series.

In 2013, the state Supreme Court issued a ruling in a surrogacy case that found that parental agreements were valid and enforceable if found to be in the child's best interest. But the high court in what is called the Rosecky case also urged Wisconsin legislators to adopt surrogacy laws because the process is being used frequently and courts and individuals need to know "the expectations and limitations under Wisconsin law." Lawmakers never did.

After settling on Wisconsin, Timmons and Olson hired an agency called Pink & Blue Surrogacy and Fertility, which is based in Waterloo, and it helped them find a surrogate mother here. Only one of the embryos proved viable.

In June 2015, a Dane County reserve judge, Sarah O'Brien, held a hearing and issued an interim pre-birth order granting Timmons and Olson parental rights. O'Brien said the order would be finalized when the child was born.

So certain was the couple that the deal was done that they told their two daughters that they soon would have a brother, whom the girls began calling "crazy Elvis."

"In fact, someone even gave us a little pair of blue suede baby shoes," Timmons said.

But then Troupis, who had been newly appointed by Walker, took over the case, and he decided in July 2015 that he would appoint a guardian ad litem to represent the interests of the child in the case.

The new judge said he didn't have a problem with same-sex marriage but wanted to be thorough in his review of the case.

About a week before Jacob was born, Troupis hired Knutson as the child's representative, even though he was from Waukesha County. Knutson had an associate from his firm, Erik Krueger, assist in the case. Krueger was a graduate of law school at Liberty University, which was founded by evangelical leader Jerry Falwell.

Krueger also had penned a 2013 article for Liberty's law review in which he denounced same-sex marriage, saying it contradicts God's law.

"It is one thing to try to normalize same-sex relationships," Krueger wrote. "It is another thing entirely to do so by expanding the God-ordained institution of marriage to encompass the very thing that God prohibits."

Knutson and Krueger spent three months preparing a 45-page report and brief on the situation, deposing Timmons, Olson, the surrogate mother, her husband and officials with the surrogacy agency.

Attorneys for Timmons and Olson are challenging Knutson's fees of more than $100,000. Kevin St. John, a former deputy attorney general who is representing the couple, wrote in a filing that the "uncontested record evidence is that guardian ad litems do not charge more than $1,500 for services in uncontested cases involving parental rights."

That's because a guardian ad litem typically limits his or her role to interviewing the prospective parents and conducting a home study before issuing a short recommendation. Knutson concluded that it was in Jacob's "best interests" that Timmons and Olson become his legal parents.

But Knutson spent the bulk of his report analyzing same-sex marriage and Wisconsin surrogacy laws and court rulings and criticizing the amount of money that Timmons and Olson paid the surrogate mother, the surrogate agency and their attorneys. Knutson even included a section on the ancient Greek philosopher Plato's view of the family.

In the end, Knutson found that state lawmakers, while recognizing surrogacy, haven't spelled out a process for determining parental rights in such cases.

"As we move away from the traditional family structure, what does it mean to be a parent?" Knutson asked. "That question is one the Legislature must answer, not the courts."

During this legal wrangling, Timmons and Olson did come to agreement with the guardian ad litem on one thing: The couple perhaps should put their surrogacy case on hold and pursue adoption of Jacob in Virginia.

When they asked Troupis for his permission to do this, the judge rejected the request.

In March, Troupis issued his 21-page ruling, in which he described the work by Knutson and his staff as "nothing less than exceptional."

The judge said Timmons and Olson were a "spectacular set of parents" and that Jacob "has, quite literally, won the lottery" with them.

But Troupis attacked parenthood via surrogacy and concluded that judges had not been given any guidelines on how to determine who the parents should be in a surrogacy case.

"While this couple is extraordinary, how can a decision here to give them parental rights without procedurally approved predicates not lead to horrifying abuse later when the next child is not so lucky in those who are the purchasers?" Troupis wrote.

Less than two months later, Troupis abruptly resigned his position.

That opened the door for St. John to file a motion asking Dane County Circuit Judge Peter Anderson — the new judge on the case — to reopen the matter and deal with several problems in Troupis' decision.

Last month, Anderson moved quickly to toss Troupis' ruling and grant parental rights to Timmons and Olson, based largely on the Supreme Court's Rosecky decision in 2013. He chalked up Troupis' mistakes to his inexperience and his being conflicted on the matter.

"So I have this court saying, if it's in the best interests of the child, just follow the (parental) agreement — the Wisconsin Supreme Court no less," Anderson said at the June 3 hearing. "To me, that pretty much answers it."

Timmons said there was little celebration after the legal victory last month. Their family was more relieved than anything else.

"We felt vindication," he said.

While the case was under review, Troupis had allowed the two fathers to take Jacob to live with them beginning in September 2015. But the uncertainty of the child's legal status made family life difficult.

"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 said. "We were afraid to fall in love with our own child."

Timmons and Olson, though, said they never had any intention of giving up their fight.

They ended up taking out second and third mortgages on their house to pay their legal bills and those of the surrogacy agency.

But they said they realize others don't have the resources to do the same.

"We would talk all the time about other people," Timmons said. "What would their alternative be? The alternative would be, 'We can't have our child because of this rogue judge and this crazy guardian.'"

The case, which is nearing conclusion, brings together political conservatives of different stripes.

Timmons and Olson have been active in conservative circles for decades, with both having worked for George Allen, the former Virginia governor and U.S. senator. Both also donate regularly to conservative candidates and causes.

Timmons' organization is among the most powerful business lobbies in the nation.

In turn, Troupis has been active in Republican circles since at least 1986, when he ran the campaign for an Illinois candidate for U.S. Senate.

More recently, he advised the forcible return of 14 Democratic senators who fled to Illinois in 2011 in an attempt to block passage of Act 10, Walker's measure to curb collective bargaining. He was an attorney for Justice David Prosser during his 2011 recount. He also was one of the attorneys who assisted Republicans as they redrew legislative and congressional boundaries.

But Timmons and Olson said they do not see their case as being about politics or philosophy.

To them, it is primarily about judicial activism — a point Timmons made in a recent online opinion piece.

"You can have an activist liberal judge, and you can have an activist conservative judge," Timmons said during an hourlong interview last week.

"We happened to get an activist conservative judge who decided he was going to impose his own values, his own social mores, and he was going to ignore the law, and he was certainly going to ignore the ruling of the Supreme Court of Wisconsin."

Image via Public Domain Pictures



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