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Improving Arrangements for Surrogacy Bill (Consistent) (Section 14) [2021] NZBORARp 70 (13 October 2021)
Last Updated: 30 November 2021
13 October 2021
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Improving Arrangements
for Surrogacy Bill
Purpose
- We
have considered whether the Improving Arrangements for Surrogacy Bill (the
Bill), a Member’s Bill in the name of Tāmati
Coffey, is consistent
with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990
(the Bill of Rights Act).
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 14 of the Bill of Rights Act
(freedom of expression). Our
analysis is set out
below.
The Bill
- The
purpose of the Bill is to simplify surrogacy arrangements, ensure completeness
of information recorded on birth certificates,
and provide a mechanism for the
enforcement of surrogacy arrangements.
- New
Zealand does not currently afford any automatic rights to the intending parents
of a child born via surrogacy, and a formal adoption
process is required. The
Bill provides a mechanism for parties to surrogacy arrangements to seek to have
the terms of the arrangement
embodied in a court order (subject to the approval
of the ethics committee under the Human Assisted Reproductive Technology Act
2004
(the HART Act)). This order would be enforceable under the Care of Children
Act 2004 (COCA) as if it were a parenting order. The
amendments also enforce the
legal obligations of the intending parents by making them liable for child
support, and appoint a Registrar
to establish and maintain a surrogacy register
of births that are the result of surrogacy arrangements.
- The
Bill is split into seven Parts, seeking to amend the following five Acts and two
sets of Regulations:
- the
HART Act;
- COCA;
- the
Status of Children Act 1969;
- the
Child Support Act 1991;
- the
Births, Deaths, Marriages, and Relationships Registration Act 1995 (the BDM
Act);
- the
Births, Deaths, Marriages, and Relationships Registration (Prescribed
Information) Regulations 1995 (the BDM Regulations);
and
- the
Social Security (Exemptions under Section 105) Regulations 1998. We note that
these Regulations were revoked on 26 November 2018.
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of expression
- Section
14 of the Bill of Rights Act affirms that everyone has the right to freedom of
expression, including freedom to seek, receive,
and impart information and
opinions of any kind in any form. The right has been interpreted as including
the right not to be compelled
to say certain things or to provide certain
information.1
- Where
a provision is found to limit a particular right or freedom, it may nevertheless
be consistent with the Bill of Rights Act if
it can be considered a reasonable
limit that is justifiable in terms of s 5 of that Act. The s 5 inquiry may be
approached as follows:2
- does
the provision serve an objective sufficiently important to justify some
limitation of the right or freedom?
- if
so, then:
- is
the limit rationally connected with the
objective?
- does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- is
the limit in due proportion to the importance of the objective?
- The
Bill contains the following provisions which limit freedom of expression by
compelling individuals to provide information to a
Registrar:
- Clause
24 inserts a new s 9(1B) in the BDM Act, requiring intending parents to jointly
notify a Registrar of the birth of a child
in accordance with the BDM Act, and
inform the Registrar whether or not they are New Zealand citizens or persons
entitled under the
Immigration Act 2009 to be in New Zealand indefinitely.
- Clause
28 inserts a new reg 3A(d) in the BDM Regulations, setting out the information
that must be notified where a birth is a result
of a surrogacy arrangement. We
note that this provision would have the effect of requiring the intending
parents to provide personal
information about the surrogate.
- The
objective of these provisions is to ensure that the information recorded in
birth certificates and in the register of children
born as a result of surrogacy
arrangements is complete, accurate and up to date. This is a sufficiently
important objective to justify
a limitation on the freedom of expression. To the
extent that these provisions limit this right, we consider that they are
rationally
connected with this objective, impair a person’s freedom of
expression no more than is reasonably necessary, and are in due
proportion to
the importance of the objective.
1 See, for example, Slaight
Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US 705
(1977).
2 Hansen v R [2007] NZSC 7 [123].
- On
this basis, we consider that the Bill appears to be consistent with the right to
freedom of expression affirmed in s 14 of the
Bill of Rights
Act.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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