By Jesil Cajes, Solicitor, McWilliam Tyree Lawyers, Wellington
Surrogacy is an arrangement where a woman gives birth to a child that is not intended to be hers, but that she carries for the intended parents. The child is usually the genetic child or one or both of the intended parents. The term ‘intended parents’ refers to an individual or couple who cannot conceive their own while the ‘surrogate’ refers to a woman who carries and gives birth to a baby for the intended parents.
New Zealand has seen an increase every year of babies being born out of surrogacy arrangements. However, New Zealand surrogacy laws remain archaic (1955) and are in need of a major overall according to the June 2022 Law Commission review.
Problems with the current surrogacy law
The Law Commission found that the current law is costly, onerous and time-consuming. Under the current law, a surrogate and her partners are the legal parents. The intended parents currently have no legal rights to the child – even if they are the genetic parents – until they adopt the child under the Adoption Act. They are unable to give any medical consent or will not have a say until they have formally adopted the baby.
The process of adoption starts with the intended parents having to go to court to adopt their own baby. Adoption involves a lawyer, a judge and the Oranga Tamariki. Going through the Oranga Tamariki can be invasive because Oranga Tamariki has to write reports on the suitability of the parents for parenthood. The adoption process can take months.
The current law is also financially not fit for purpose. It is unlawful for the intended parents to pay the surrogates for their loss of income as a result of carrying the baby. This leaves the surrogates out of pocket.
Lastly, the current law has no surrogacy birth register. This makes it hard for babies born out of surrogacy to access information and their whakapapa links.
Recommendations for change
Sweeping changes to surrogacy law have been endorsed by the Law Commission. The Law Commission made 63 recommendations to simplify New Zealand’s surrogacy framework. Below is a summary of the four key recommended changes:
- Remove court process. The Law Commission does not think that the family court process is necessary to establish legal parenthood. In practice, this means that the transfer of parentage should occur through a simple administrative process, provided the ethics committee has approved the surrogacy and the surrogate confirms her consent after birth to the transfer of parentage.
- Simplify process for legal parents. The Law Commission proposes people will no longer have to go through Oranga Tamariki, therefore removing a lot of red tape and unnecessary steps.
- The Law Commission has endorsed the establishment of a national surrogacy birth register to ensure surrogate-born people can access information about their creation, genes and whakapapa links and commissioning Māori-led research to better understand Māori perspectives on the issue.
- Surrogates be paid costs. Surrogates can be paid for reasonable costs such as loss of income. However, the Law Commission said that commercialisation of surrogacy is not wildly supported.
While these recommendations will certainly improve the surrogacy law, it is important to note that these proposed changes are not yet law.
Surrogacy is a complex area, and it is important that both the intended parents and intended surrogate obtain legal advice prior to engaging in the process. Book in an appointment at McWilliam Tyree Lawyers.