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The Law Commission is reviewing New Zealand’s surrogacy laws.
Instigated by former Justice Minister Andrew Little, the Commission is recommending a new pathway to parenthood that doesn’t require adoption for parents of a surrogate-born child.
At last week’s launch of Kōpū Whāngai: He Arotake – Review of Surrogacy, the Commission said it is seeking feedback on the review’s recommendations. Those wanting to contribute feedback have until 23 September to do so.
In the review, the Commission says adoption is inappropriate for surrogacy agreements.
‘The law fails to promote the child’s best interests… does not respect the intentions of the surrogate and intended parents,” it says.
“Surrogacy arrangements affect the child as well as the parties involved and we want to make sure the law is right for everyone,” Law Commission principal advisor Nichola Lambie says.
If the Commission’s proposal goes ahead, parents would be recognised legally from the birth of their child. There are two provisos: the surrogate must consent; the arrangement must have been approved by the Ethics Committee on Assisted Reproductive Technology (ECART), a requirement in some scenarios.
Otherwise, a Family Court application for legal parenthood would be required, as is the case at present.
As written, the new recommendations would help people like a US-based couple who had to adopt their own children from themselves to get New Zealand passports for them. Their case exposes the discriminatory pitfalls around the country’s surrogacy laws.
The couple had fathered twin boys born via a surrogate while living in the United States six years ago.
Following a US legal process, they were marked as parents on the boys’ birth certificate from the moment they were born, costing them about $30,000 in legal fees.
One father is a New Zealand citizen, the other US. However, New Zealand did not recognise them as legal parents.
According to New Zealand rules, the legal parents were the surrogate and her partner.
To change this, the fathers needed to bring the children home on a temporary visa and go through the adoption process here, including proving they were fit parents.
The couple found this insulting, degrading and impractical. Eventually they had to adopt the children from themselves, since they were legally parents in the US. This would enable them to be recognised as parents in New Zealand. It worked, but cost them another $7000 in legal fees.
Another set of parents say the Commission’s proposed new surrogacy laws don’t go far enough.
“In our scenario … we avoided the ECART ethics approval, therefore we would be in pathway number two… pathway number two still includes a social worker assessment, still includes Family Court involvement and even in the report that they’ve just released they acknowledge that it’s not much different than what it currently is.”
The Commission review also includes recommendations surrounding Māori tikanga, the child’s right to information, international surrogacy, Government funding for related surrogacy agreement costs and compensation for surrogates.
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