New Zealand man granted adoption order after illegal Thai surrogacy

A New Zealand man who circumvented strict surrogacy laws in Thailand to father a child has been granted permission to adopt his son.

The man, who has not been named, paid a fertility clinic worker to arrange a commercial surrogacy agreement, which is illegal in Thailand. The baby – a boy – was conceived using the man's sperm and a donor egg. The man and the surrogate were listed as mother and father on the birth certificate, but the surrogate signed an agreement relinquishing custody and parental rights.

The court acknowledged that circumstances surrounding the child's conception were complex but concluded that the welfare of the child should take precedence. In her ruling, Judge Belinda Pidwell said that the child 'has the right to grow and thrive, to have a nationality, and the right to know and be cared for by his parent.' She said, 'The irregularities in his creation, or the sins of his father, should not be visited upon him.'

Commercial surrogacy was banned in Thailand in 2015 following the high profile baby Gammy incident (see BioNews 765 and 767). Altruistic surrogacy is permitted but restricted to married heterosexual couples who are Thai nationals, in cases where the intended mother is unable to carry a pregnancy.

The man, who is single, gay and not a Thai citizen, told the court he was not aware his action was illegal at the time. Sharing how he would explain the birth story to his son in future, the man said 'that's a beautiful mistake I've made. I regret I may have committed a crime in Thailand but I never not in one minute regret having you in my life,' according to the New Zealand Herald.

The Family Court made the ruling over objections from the Oranga Tamariki, the New Zealand government’s Ministry for Children. In its submission to the court, the ministry confirmed that they would have assessed the man as a 'fit and proper' adoptive parent and their only objection was that he had broken the laws of another country to have a child.

'The concern is if children born of illegal surrogacy arrangements are allowed entry into New Zealand, and their parentage is then endorsed by an adoption order, that could be seen as an endorsement of unlawful actions,' they stated.

Judge Pidwell said that the Family Court cannot consider immigration issues, and that the Adoption Act 1955 has no provisions for a child that has been created in contravention to another country's laws. 'For decades, Family Court judges have been applying the adoption law and commenting that it is in dire need of review to accommodate the changes in society and way children and families are created,' she said. 'No government has yet made any changes, and thus the court must apply the law as it stands to each case before it.'

The Improving Arrangements for Surrogacy Bill includes a series of proposals to simplify recognition of legal parenthood for intended parents in New Zealand and would replace the need for adoption in many cases. The bill was put forward in 2022 and is still being considered by Parliament.