Melissa Brisman — a leading fertility lawyer and CEO of Reproductive Possibilities — has helped thousands of couples become parents through surrogacy over the past 18 years.
But Brisman said she has never heard anything like the case of the same-sex couple who ended up spending $400,000 in legal fees in a protracted fight with a judge appointed by Gov. Scott Walker in their bid to become the parents of a son through surrogacy.
“This is the craziest thing I’ve ever heard,” Brisman said this week. “I’ve been doing this since 1998. I’ve had over 2,000 cases. I’ve never had this happen in any of my cases. Nothing remotely similar.”
Brisman even encouraged the same-sex couple to file complaints against the judge with state regulators. Reproductive Possibilities in New Jersey is the largest surrogacy agency on the East Coast.
As I wrote earlier this week, Jay Timmons and Rick Olson — a Virginia couple who has been married since 2008 — 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.
The couple had a number of things going for them. They had good jobs. They already had two daughters born through surrogacy. They had more than 150 references.
The case was not contested.
But then-Dane County Circuit Judge Jim Troupis rejected their parental agreement in a March decision in which he repeatedly compared surrogacy to human trafficking. He also stripped the surrogate mother of her parental rights, rendering the infant an orphan.
Before issuing his decision, Troupis appointed a guardian ad litem who has run up more than $100,000 in bills while spending months working on a report that raised questions about same-sex couples and surrogacy.
In the end, the guardian ad litem found it was in the best interests of the infant, named Jacob, for Timmons and Olson to become his parents, but the guardian ad litem suggested Troupis reject the parental agreement on legal grounds.
Since then, Troupis has resigned his post, and another judge has overturned his order, allowing the two fathers to become the legal parents of Jacob, who turns 1 in August.
In an interview, Brisman said she has on occasion run into a judge who has personal or philosophical objections to surrogacy. But in most of those cases, she said, the judge simply rejects the pre-birth order and allows the couple to adopt.
But that didn’t happen here.
Timmons and Olson asked Troupis if they could put a hold on the Wisconsin proceedings so they could pursue adoption in their home state of Virginian. Troupis rejected the request.
As for the fees, the New Jersey attorney said she can’t imagine a couple coughing up $400,000 in legal fees in a surrogacy case. Timmons and Olson covered the costs for nearly a dozen attorneys in addition to paying the surrogate mother $35,000 and the surrogate agency $12,500.
Brisman said the most expensive case she had previously seen cost $10,000 in legal fees, something that she said was highly unusual. Typically, it costs a couple about $1,500 to $2,500 for an attorney to get a birth order.
“Ten thousand (dollars) means we had a problem of some sort — we got a bad judge or there was a long hearing,” Brisman said. “Four hundred thousand (dollars) is off the wall. Most judges would let you withdraw and do the adoption.”
As for the guardian ad litem, she said the most she has seen one charge in a surrogacy case was $900. The attorney for Timmons and Olson submitted a brief saying guardians ad litems charge between $300 and $1,500 for services in uncontested cases involving parental rights.
But Mark Knutson, the guardian ad litem in this case, and his associate deposed both Timmons and Olson, the surrogate mother, her husband and officials with the surrogacy agency. The associate is a graduate of the evangelical Liberty University Law School who has written that same-sex marriage is opposed to “God’s law.”
Knutson’s fees, which recently topped $100,000, are paid by Timmons and Olson.
The pair repeatedly objected to those costs, but the judge found the fees were reasonable given “what’s at stake — the life of the child.”
Brisman said Troupis had to have known that he was running up the costs for the couple. She said it would have been interesting if, at some point, the couple said they could no longer pay the bills.
Dane County Judge Paul Anderson, who took over the case from Troupis, was highly critical of his handling of the case, saying it could have been done “much more quickly than occurred here with much less expense and much more, I think, humanely.”
Troupis had said early in the case that he had no objections to same-sex marriage.
But Brisman said this case was unusual in several regards. Not only are Timmons and Olson gay — they’ve been together for 25 years — but neither of them is genetically related to Jacob. The frozen embryo came from a heterosexual couple who were friends.
Brisman said Timmons and Olson should consider filing complaints with state regulators against the judge and guardian ad litem and then do what they can to recoup some of their costs.
Brisman warned them to be aware of the state’s legal climate before filing a complaint.
Yet this dispute is not one between opposing parties.
Both Timmons and Olson are active conservatives who worked for Virginia Gov. and Sen. George Allen, a Republican. Timmons is CEO of the National Association of Manufacturers, a pro-business lobby.
Troupis has long been active in Republican politics. Along with being appointed by the GOP governor, he represented Justice David Prosser in his election recount and worked for Republican lawmakers when redrawing congressional and legislative boundaries.
Timmons and Olson issued a statement on Tuesday saying they hope state regulators look at their case. The Office of Lawyer Regulation is the arm of the state Supreme Court that polices lawyers. Judges are overseen by the state Judicial Commission.
“We told our story to bring to light what happened to our family so that it won’t happen to others,” the pair said.
“What happened to us certainly didn’t feel ethical, and we would hope that regulators would conduct an investigation so that others can be protected from activist judges and unethical lawyers.”
Troupis and Knutson have declined to discuss the case.