Mother not recorded': the story of Paige's law

Until March 2022 Paige Harris had the unfortunate distinction of being the only child ever born in New Zealand whose birth certificate contained the phrasing 'Mother: Not Recorded'.

One week before her second birthday this was remedied through the use of a rarely used legislative process known as a Private Bill, meaning that the name of her genetic mother can now be recorded on her birth certificate.

Paige Katherine Elizabeth Harris was born on 25 March 2020. Her mother, Katherine, had undergone a lung transplant due to cystic fibrosis and it was considered medically unsafe for her to carry a child. Katherine and her husband Kyle, therefore, accepted the offer of Renee Johnson (and her partner Josh) for Renee to act as a gestational surrogate using an embryo created from Katherine and Kyle's gametes.

In New Zealand, the Human Assisted Reproductive Technology Act 2004 requires that gestational surrogacies be approved by the Ethics Committee on Assisted Reproductive Technology, and this approval was received following a medical report from Katherine's doctors which described a 92 percent chance that Katherine would lead a happy and healthy life for the next ten years. Unfortunately, only days after the pregnancy was confirmed, Katherine began to reject the lung transplant. She died three months before Paige's birth.

Under Part 2 of the Status of Children Act 1969, the legal parents of a child born through surrogacy are the birth mother (Renee) and her partner, if they consented to the surrogacy (Josh). The intended parent(s) must adopt the child to gain legal parentage. After Paige's birth, Kyle adopted Paige, a process which was made more difficult by the presumption in s4 Adoption Act 1955 that an adoption order shall not be made in respect of a female child where the sole applicant is male, unless special circumstances apply. Katherine, who was no longer alive, could not be an applicant.

The adoption was granted in June 2020, naming Kyle as the father but listing the mother as 'not recorded'. Kyle described seeing the birth certificate as 'a bit of a kick in the guts' and began lobbying Members of Parliament to have Katherine's name entered on the birth certificate. A petition in support of this was begun by Josh and attracted over 59,000 signatures.

In January 2022 Parliament was given a Notice of Intention to introduce a Private Bill. The purpose of a Private Bill is to change a law to benefit a particular person or group, and is promoted by an individual person (Kyle) with an MP listed as being in charge (MP Louisa Wall). This is a rare form of legislation, used only five times since 2015.

The Paige Harris Birth Registration Bill was introduced in February 2022. The Bill required the Registrar-General to enter Katherine onto Paige's birth certificate as her mother, as if an adoption order had been made in favour of both Kyle and Katherine and as if the correct notice had been received under sections 23-24 Births, Deaths, Marriages, and Relationships Registration Act 1955 (which requires all applicants to be alive).

Wall commented that this Bill 'will finally give Paige her right to her full identity [and] allows for Katherine to be rightfully listed as Paige's mother'.

The Bill received its first reading in February. It received unanimous support, with MP Teanau Tuiono (Green) commenting that the current law is 'archaic and not fit for purpose in terms of our modern families [or] for the ways that families have always been' and MP Todd Muller (National) considering it to be 'completely out of whack with what an open, pluralistic, comfortable Aotearoa New Zealand is in terms of being able to express who they are…'.

The importance of understanding one's 'whakapapa', a Maori term which encompasses genealogy and connectedness to people and places, was emphasised by several MPs.

The Bill progressed rapidly and without issue, and received Royal Assent on 18 March, giving Kyle a week to fulfil his goal of having Katherine's name included on Paige's birth certificate by her second birthday.

The implications of this law for Paige's family were described by Katherine's mother, Alison Fraser, in a submission: 'Kyle needs to know his promise to Katherine has been fulfilled, and, like all of us, Paige has her mother Katherine named on her birth certificate. Not just a blank space.'

The implications for surrogacy laws in New Zealand are potentially far broader. During the debates, Muller commented that he had read the background information to the Bill 'twice' because in his words 'surely that [law] can't be right.'

Tuiono described needing to give the law 'a second look, and then a third look, and then a fourth look, because you think these things would have been sorted out in the law'. MP James McDowall (ACT) noted that this Bill 'really puts the spotlight on the need to modernise our surrogacy laws and the laws surrounding adoption in New Zealand'.

It was noted that the Ministry of Justice has already begun work to reform the Adoption Act, and the New Zealand Law Commission was undertaking a project (now completed) on reviewing laws relating to surrogacy. Further, a Private Members' Bill (which is introduced by an MP rather than a member of the public) entitled Improving Arrangements for Surrogacy had been drawn from the ballot and was awaiting its first reading (which subsequently occurred in April 2022). The proposed amendments in the Bill and in the Law Commission report would have addressed Paige's situation, had they been enacted. Most importantly, Prime Minister Jacinda Ardern has vowed to alter surrogacy laws, hopeful that this can occur before the end of this Parliamentary term (January 2024).

Wall summed up the effect of the law change in this way: 'This legacy is for Paige, but Paige is providing a legacy for other children – and I think that is amazing.'