Contrasting New Zealand proposals for legal parenthood of surrogacy-born children 

Adoption is currently the only way to alter existing legal parenthood under New Zealand law. The 2004 Human Assisted Reproductive Technology Act (HART) simply assumed that in surrogacy, intended parents would become legal parents through adoption. It is this requirement that has been most strongly criticised by those objecting to existing surrogacy law and regulations.

The 1955 Adoption Act is almost 70 years old. It has long been recognised, including by the legal profession, as unfit for purpose even for longstanding forms of adoption, let alone for establishing legal parenthood in the context of surrogacy.

So far, the only new draft legislation is Improving Arrangements for Surrogacy (IAS), a Member's Bill put forward by MP Tamati Coffey (who has two children born via surrogacy with his civil union partner).

At the first reading, Coffey said 'There are a lot of issues in the world of surrogacy, and this bill fixes just a few of them ... I'm open to the idea of my member's bill being absolutely superseded by a strong piece of legislation informed by the work of the Law Commission'. Its comprehensive report, Te Kōpū Whāngai: He Arotake | Review of Surrogacy was published in May 2022, just after the IAS Bill went to the Health Committee.

Both IAS and the review completely reject using adoption in surrogacy, but they offer starkly contrasting pathways to legal parenthood. Under IAS, the parties applying for ECART (Ethics Committee on Assisted Reproductive Technology, a ministerial committee established under the HART act) approval of gestational surrogacy (as already required) would consent to the intending parents becoming the legal parents. ECART would approve the arrangement 'for the purposes of obtaining a surrogacy order' through the Family Court.

At some stage during the pregnancy (the timing is not clear) a 'party' could apply for this order, making the intending parents the legal parents at birth. 'Custody' of the child would then 'transfer from the surrogate to the intending parents within ten days'. This order would be enforceable, with no right to withdraw consent. The same process could also apply to overseas surrogacies, provided there is evidence of consent and compliance with approval requirements from an ECART equivalent in that jurisdiction – though few of these exist.

The Law Society's submission on this bill highlights a raft of legal problems. Only gestational surrogacies can seek an order – there is no clear path to legal parenthood for others. As drafted, the surrogacy order would not in fact confer legal parenthood at all, so adoption would still be required. Obtaining legal parenthood through an irrevocable, enforceable pre-birth process is widely regarded, locally and globally, as unacceptable, and 'is therefore unlikely to offer future certainty for intended parents'.

The Law Commission Review specifies two linked pathways to legal parenthood. These cover all situations and take into account the rights and vulnerabilities of all those involved.

1. Administrative pathway

Where the required conditions are met, the child quickly becomes the legal child of the intended parents by operation of law, with no need for a court process. Providing an administrative pathway 'recognises surrogacy as a legitimate form of family building that, like other forms of assisted reproductive procedures, should not require judicial oversight if appropriate safeguards are in place'.

Like all other women giving birth in New Zealand (and in most other countries), the surrogate would be the legal mother at birth, ensuring the child's nationality and other rights no matter what else happens. However, the surrogate's partner would no longer be a legal parent. The intended parents would automatically be additional legal guardians, with 'all duties, powers, rights, and responsibilities ... in relation to the upbringing of the child'. They can take the child into their care immediately.

Once the child is seven days old, the surrogate actively confirms the original arrangement by giving her formal consent to the intended parents becoming the legal parents. If she does not consent, the court pathway follows (see below).

Where all parties prefer that she remains the legal mother (as is usually the case in customary Māori whāngai arrangements within an extended family), this could be done instead. It would form part of the overall aim of supporting Māori to act in accordance with tikanga - that is, in a way that is culturally proper or appropriate. Current law does not provide this support.

ECART approval

The administrative pathway would require ECART to approve all clinic surrogacy arrangements, both gestational and traditional.

Prior approval is a proactive safeguard that protects the rights and interests of the surrogate, the intended parents and any resulting child. It reduces the risk of problems arising during and after pregnancy by ensuring that a surrogacy arrangement only proceeds when all the protective requirements have been met.

The existing rigorous process includes medical and other assessments, wide-ranging counselling, and legal advice. This clearly works: there has been only one report so far of an approved arrangement coming to grief (when serious unforeseen prenatal depression, apparently inadequately treated, led to termination of the pregnancy).

The review recommends a written plan which covers informing the child, an appeal process, and better ECART resourcing, urgently needed for the system to work as well as possible. For non-clinic traditional surrogacy arrangements, Government should consider how to encourage use of the approval process, including 'whether parties should be supported to apply directly to ECART', giving them access to the administrative pathway.

Identity issues

Unlike the UK, since 2020 New Zealand has not required intending parents to have a genetic connection with embryos used in domestic surrogacy. Anonymous donors of gametes and embryos are not permitted in domestic clinic treatments. When clinic donations result in children, the details are recorded on the official Donor Register. A recommended new Surrogacy Register would give surrogacy-born people rights to information and access similar to those of the donor-conceived. It is implied (but not stated) that surrogates, like donors, would have related rights too.

2. Court pathway

The court pathway of applying for a parentage order would be required where the conditions for the administrative pathway are not met. This covers all cases without prior approval from ECART, including non-clinic traditional surrogacy and international arrangements, as well as 'the unlikely event of a dispute arising over legal parenthood' after the birth. The review emphasises that this is very rare:

'We are only aware of one legal parenthood dispute in Aotearoa New Zealand, and that arose in a private, traditional surrogacy arrangement that did not go through the ECART process. We are not aware of any ECART-approved surrogacy arrangement resulting in a dispute.'

The Family Court 'must be satisfied that making a parentage order is in the best interests of the child'. The review recommends 11 'relevant considerations' (strongly supported by submitters) which must be taken into account.

This review is generally seen as providing a comprehensive blueprint for the best possible legal support and protection of the rights and well-being of the children being created through surrogacy and all the adults directly involved. It was widely expected that the government would draft its own bill based on it.

Instead, the health committee received approval to amend the IAS bill using review recommendations – a massive task. Its report has been delayed until 4 August 2023. This means that no new surrogacy (or adoption) legislation will get through before the October general election.

What would happen if the New Zealand National Party leads the next government is unclear. In the past, the party has been reluctant to tackle such urgently needed reforms. Shelving them at this late stage would be damaging for all concerned.  

A Labour-led government will intend to fulfil its earlier promises. But it could take yet another round of public and professional pressure to ensure that it finally does so by passing well-grounded new legislation as quickly as possible.