A complex and evolving area of law
For many of us, having a baby is relatively straightforward. For some, however, the road to parenthood is marked with U-turns, blind alleys, stop/go and much more. In the last few years, surrogacy has become an option for people for whom parenthood is not a straight path. And it’s all embedded in a legal framework.
In this country, surrogacy is a complex and evolving area of law, shaped by a combination of outdated statutes, modern reproductive technologies and ongoing legislative reform.
Legal framework
Surrogacy arrangements in New Zealand are legal, but is strictly regulated. The key, and very out-of-date, statutes governing surrogacy include the Human Assisted Reproductive Technology Act 2004, the Status of Children Act 1969 and the Adoption Act 1955. It’s worth noting that commercial surrogacy is prohibited — only altruistic arrangements are allowed – there can be no fee involved. The intended parents may only reimburse their surrogate for reasonable expenses, not pay for their services.
Under current law, the woman who gives birth to the child (the surrogate) and her partner (if she has one and they consent) are the legal parents at the birth of the child, regardless of genetic connection. The intended parents, even if they are genetically related to the expected child, have no legal parental rights until they complete an adoption process through the Family Court.
Intended parents can be married, a de facto couple, same sex couple or single female applicant. There is a restriction on a single male applicant adopting a child unless there are special circumstances.
Surrogacy arrangements
Surrogacy agreements are not legally enforceable in New Zealand. This means that if a surrogate mother changes her mind and wishes to keep the child, the intended parents have no legal recourse to enforce the agreement.
We would strongly advise all parties to seek independent legal advice before entering any surrogacy arrangement. Intending parents of the child are required to obtain a report confirming they have received legal advice before they start the surrogacy process.
IVF and ECART approval
Where surrogacy involves in vitro fertilisation (IVF), the arrangement must be approved by the Ethics Committee on Assisted Reproductive Technology (ECART). This process includes medical, psychological and legal counselling for all parties, and an assessment and approval of the intended parents’ suitability to adopt. The intended parents also require consent from Oranga Tamariki.
Adoption process
After the child is born, the baby can be in the care of the intended parents with the birth mother’s consent and subject to placement consent by Oranga Tamariki.
The surrogate, and any partner, must register the birth promptly, and then at least 10 days after the date of the birth, receive legal advice and sign a consent to the adoption.
The intended parents must apply to the Family Court for an adoption order even if one or both of them are the genetic parents of the child. The court process involves a social worker’s report and a judicial determination that the adoption is in the child’s best interests. Only after the adoption order is granted do the intended parents become the child’s legal parents, and a new birth certificate is issued.
International surrogacy
International surrogacy arrangements present significant legal and practical challenges, and there are international legal requirements to meet. Specialist legal advice is required for these.
Law reform on the horizon
The current legal framework is widely regarded as outdated and unfit for modern surrogacy arrangements. The Improving Arrangements for Surrogacy Bill, introduced in 2022, aims to simplify the process, provide for parentage orders (rather than requiring adoption), and ensure that all parties’ rights and interests (including, importantly, those of the child) are better protected. This bill is currently at Select Committee stage.
If you want to know more about how surrogacy could work for your situation, please don’t hesitate to contact us. We are here to help.
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Copyright, NZ LAW Limited, 2022. Editor: Adrienne Olsen. E-mail: [email protected]. Ph: 029 286 3650
