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New Issues in Legal Parenthood - Government response to the Law Commission report [2006] NZLCGovResp 88
Last Updated: 29 January 2019
GOVERNMENT RESPONSE TO LAW COMMISSION REPORT ON
NEW ISSUES IN LEGAL
PARENTHOOD
Presented to the House of
Representatives
GOVERNMENT RESPONSE TO LAW COMMISSION REPORT ON NEW ISSUES IN LEGAL
PARENTHOOD
INTRODUCTION
- The
Government has carefully considered the Law Commission’s report NZLC 88
“New Issues in Legal Parenthood”. The Government responds to
the report in accordance with Cabinet Office circular CO (01)
13.
BACKGROUND
- The
Law Commission’s report responds to a Government referral, in 2003, to
review the legal rules that determine parenthood.
In particular, the Commission
was asked to inquire into and report on:
(i) How parental status should be determined in law, specifically what value
should be ascribed to a person’s biological relationship
with a child; a
person’s social or care giving relationship with a child and a
person’s gestational relationship with
a child;
(ii) Whether the assumption underlying the current law, that a child should have
no more than two parents, be amended to allow a
child to have more than two
parents identified in law;
(iii) Whether the law should permit a child to have only one parent recognised
in law;
(iv) Whether the current statutory presumptions as to parenthood based on
relationships with the child’s birth mother be amended,
and if so,
how;
(v) What should be the processes and evidence by which an adult can prove or
disprove parenthood;
(vi) What value should the law attach to agreements between adults as to
parenthood and what should be the effect of disproving a
biological relationship
with the child;
(vii) What legal effect should surrogacy agreements have in determining the
parental status of the adults who are party to the agreements
and what should be
the consequences if one party to an agreement reneges on it;
(viii) Whether a commissioning couple, before entering into a surrogacy
agreement, be required to gain approval as parents as adoptive
parents are
required to;
(ix) To consider and comment upon any other legal issues relating to status of
parenthood which arise in the course of this review.
LAW COMMISSION REPORT
- The
Law Commission made specific recommendations covering a range of subjects
dealing with acquiring and proving legal parenthood
and genetic parentage. The
recommendations fall into 3 broad areas:
(i) Establishing genetic parentage, including recommendations
about:
- - Legal
presumptions of parentage for couples;
- - Standards and
protocols for tests to prove genetic parentage (eg DNA profiling); and
- - Powers of
parents and the courts to undertake or compel parentage testing.
(ii) Assigning legal parenthood, including recommendations
about:
- - Allocating
legal parenthood status (and consequent rights and responsibilities) where
assisted human reproductive (AHR) procedures
have been used; and
- - Processes for
assigning and transferring legal parenthood status, for example to a known sperm
or egg donor or to implement surrogacy
arrangements.
(iii) Information about genetic parentage and legal parenthood, including
recommendations about registering and accessing genetic parentage and legal
parenthood information for children conceived
using AHR procedures.
- The
Commission considered the primary purpose of parenthood laws is to provide
security and protection that children, as vulnerable
members of our society,
need. It did not consider parenthood laws should focus on the
‘rights’ of parents or be used
as a way to encourage particular
family forms.
- The
Commission applied five guiding principles when considering whether to recommend
law reform in this area. These principles were:
(i) The child’s welfare and best interests are a primary
consideration;
(ii) Clarity and certainty of status at the earliest possible time and
simplicity in court processes;
(iii) Everyone should be able to access information about their genetic and
gestational parentage;
(iv) Collaborative and autonomous parenting should be facilitated by legal
processes; and
(v) Children are to be equal and they and their families not disadvantaged by
the circumstances of their creation or form of family.
OVERVIEW OF GOVERNMENT RESPONSE
- The
Government notes that the legal status of being a parent is both legally
and socially significant for many people. Parenthood carries with it
a number of legal rights and responsibilities that do not attach to
guardianship.
Socially, parenthood is important because it establishes
permanent, inter-generational family relationships.
- Legal
rules allocating parenthood impact upon the interests of many parties –
more so than ever before, due to the increased
range and availability of AHR
technologies. The Government accepts the Commission’s view that a primary
purpose of parenthood
laws is to provide security and protection that children,
as vulnerable members of our society, need. However, this purpose must
be
considered in the context of the continuing legal and social importance of the
parent-child relationship once the child reaches
adulthood.
- The
Government agrees with the Commission’s view that, when considering law
reform in this area, the child’s welfare and
best interests are a primary
consideration. The law should provide clarity and certainty of parental status
at the earliest possible
time and processes for allocating parentage and
resolving disputes about parentage should be simple. However, there should also
be
sufficient flexibility to allow adults involved in a child’s creation
through an AHR procedure to decide on the legal roles
of each party in family
formation. Where the State has provided a legal framework for parenthood
arrangements that differ from ordinary
parental presumptions, it should enable
access to appropriate assistance.
- While
every New Zealander is affected by parenthood laws (whether as a parent or a
child), the problems identified by the Law Commission
are only likely to affect
a relatively small number of people. In some cases the significance of the
problem is also small (for example,
the legal definition of
‘mother’). However, in others the problem is of great significance
(for example, transferring
parenthood to implement surrogacy
arrangements).
- The
Government acknowledges that the effect of current parenthood laws can be that a
child’s genetic or social parent is not
the legal parent. This outcome may
not be appropriate in every case. However, the range and complexity of
circumstances in which
these cases arise, and the significance of parenthood,
mean that any steps to amend parenthood laws must be considered carefully
and
taken with caution.
- In
addressing the recommendations, the Government has identified recommendations
with which it:
- Agrees in
principle, and will consider undertaking further work towards implementing.
These include:
- - Extending the
presumption of paternity;
- - Enacting a
minimum framework formalising consent requirements for DNA parentage
testing;
- - Making court
orders to undergo parentage testing enforceable; and
- - Transferring
parentage to implement surrogacy arrangements.
- Agrees that the
concerns prompting the recommendation are valid, but considers that further
policy work and consultation is required
before drawing conclusions on the
concerns and any proposed solutions. These include:
- - Allowing
parenthood to be allocated by agreement to ‘known’ donors of sperm
or eggs;
- - Allowing a
‘known’ donor to be declared liable for child support if the donor
has assumed some responsibility for the
child;
- - Allowing the
court to make orders establishing or extinguishing legal parenthood in cases of
mistaken implantation;
- - Providing
information with birth certificate applications to alert more people to the
possibility they may be donor-conceived;
- - Allowing
parents to have an annotation put on birth certificates stating the child was
born by ‘donor’;
- - Considering
whether there is a need for a best practice counselling protocol for fertility
clinics providing treatment with egg
and sperm donation;
- - Providing
counselling for donors and donor offspring accessing the ‘voluntary’
HART Act register;
- - Increasing
the types of samples available for DNA parentage testing;
- - Providing
subsidised DNA testing;
- - Requiring
parents of children born from donor or surrogacy arrangements without the
assistance of fertility clinics to provide the
donor’s information to
Births, Deaths and Marriages; and
- - Identifying
the policy objectives for recording legal parents and genetic
information.
- Disagrees. These
include:
- - Enacting
definitions of ‘mother’ and ‘father’;
- - Abolishing
the indirect presumption of maternity and enacting an explicit presumption;
- - Accrediting
providers of DNA parentage testing;
- - Making court
formalised agreements between parents and a ‘known’ donor about the
donors role in the child’s life
presumptively enforceable;
- - Requiring
parties to receive independent legal advice before having a court formalise
agreements between parents and a ‘known’
donor;
- - Requiring
certain people receiving AHR to undergo compulsory counselling and
education;
- - Requiring
fertility clinics to counsel all unpartnered women receiving donor gametes about
the importance of appointing a second
guardian for their child;
- - Requiring
parents intending to have a child through embryo donation to undergo mandatory
screening; and
- - Revisiting a
number of areas already considered when Parliament enacted the Human Assisted
Reproductive Technology Act 2004 (the
‘HART’
Act).
- Justice
Ministers will consider the priority to be accorded to any further work when
setting the Ministry of Justice’s annual
work
programme.
LAW COMMISSION’S RECOMMENDATIONS AND GOVERNMENT
RESPONSE
Establishing Parentage
Law Commission recommendations – defining mother and
father, presumptions of parentage
- The
Law Commission has recommended that:
- There should be
specific statutory definitions of ‘mother’ and
‘father’;1
- The indirect
statutory presumption of maternity should be abolished and replaced by an
explicit provision;2 and
- The presumption
of paternity should be extended to situations where children are conceived
outside of marriage but within an opposite-sex
de facto or civil union
relationship.3
Government response
- The
Law Commission was concerned that there are no explicit definitions of
‘mother’ and ‘father.’ However,
it has not provided
evidence to suggest that the status quo has caused any problems. In cases where
a question arises over maternity
(for example, surrogacy, embryo donation), the
Law Commission has proposed other legal processes to transfer parenthood. The
Government
considers that introducing new definitions would risk creating
unintended consequences. For these reasons, the Government disagrees
with the
proposal.
- The
legal presumption of ‘paternity’ applies if the child’s mother
and father are married when it is born, or the
child is born within 10 months of
the marriage being dissolved. The Government agrees that the presumption should
be amended. Given
the significant number of children born into de facto
relationships, it is sensible to extend the presumption of paternity to children
born within those relationships. The proposal also avoids discrimination on the
basis of marital status and provides a more logical
basis for determining
paternity of a child born after a couple separate. All children and parents in
analogous family situations
would be subject to the same regime. It will,
however, be extremely important to create a presumption that is simple to
apply.
- The
Commission considers that there is an ‘indirect’ statutory
presumption of maternity (arising from the presumption
of paternity) that should
be abolished. Whether this is in fact the case is a matter of interpretation.
The Government believes that
the common law rule that evidence of birth
constitutes maternity continues to work well and is unmodified by the
presumption of paternity
1 Recommendation 1.
2 Recommendation 2.
3 Recommendation 3.
discussed above. Enacting an explicit presumption of maternity, as suggested by
the Commission, would risk creating unintended consequences.
Law Commission recommendations – DNA parentage
testing
- The
Commission has made a range of recommendations on DNA parentage testing. It has
recommended that providers of DNA parentage testing
should be accredited, that
an increased range of bodily samples be available for DNA parentage testing and
that information about
DNA parentage testing be accessible to the public and
professionals involved. 4
- The
Commission has also proposed that the consent of both parents to DNA parentage
testing be required, with protocols for verifying
parties’ consents and a
court process for dealing with parental conflict about consent.5 It
also recommended that the courts should be able to order, rather than just
recommend, parentage testing and that the courts have
powers to enforce the
order.6
Government response
- The
issue of disputed parentage is significant for those involved and the Government
agrees that it is desirable to consider ways
of improving the resolution of
issues about parentage testing.
- However,
the Government disagrees with the Law Commission’s proposal to accredit
providers of parentage testing. The general
accreditation system for medical
laboratories has sufficient scope to specifically consider a laboratory’s
suitability to undertake
DNA testing as well. The Government agrees there is
likely to be benefit in ensuring information about DNA parentage testing is
widely
available. The Government sees some merit in increasing the types of
samples that can be used for parentage testing in court, but
further
consideration of the reliability of using other sample types is required before
reaching any firm conclusion.
- The
Government agrees that it is desirable to enact a legislative framework that
formalises minimum consent requirements for parentage
testing where test results
will be used in court or by government agencies. It also agrees that the current
unenforceability of court
recommendations for parentage testing may not be in
the best interests of the child. Enforceable court orders may be preferable.
However, any changes to parentage testing law will require careful consideration
– testing raises fundamental issues about
the extent to which it is
appropriate for the State to compel the taking of bodily
samples.
4 Recommendation 4.
5 Recommendations 5, 6 and 7.
6 Recommendation 8.
Assigning Parenthood
Law Commission recommendations
– agreements between donors and parents
- The
Law Commission has recommended a number of legislative amendments aimed at
implementing or recognising agreements made between
donors of eggs or sperm and
the legal parents of a child born as a result of the use of donor eggs or sperm.
These include:
- Enabling legal
parenthood to be assigned to a ‘known donor’, either as the
child’s second or third parent;7
- Enacting a
presumption that agreements between donors and parents under section 41 of the
Care of Children Act 2004 (about the involvement
of a donor in the child’s
life), that are the subject of a court consent order, be enforceable, unless the
court considers
it demonstrably in the child’s best interests to vary the
agreement.8
- Requiring
parties (donor and parents) to receive independent legal advice before having a
section 41 agreement made into a court order.9
- Allowing a
‘known donor’ to be declared liable for child support, if the donor
has knowingly assumed some parental responsibility
for the
child.10
Government response
- Currently,
known donors have no parental status regarding children they have helped
conceive. They can access:
- Some
parental rights and responsibilities, by entering into an agreement with the
child’s legal parents11 or becoming a legal guardian; or
- All
parental rights and responsibilities by adopting the child or later becoming
the partner of a woman who was single when she became
pregnant with the
donor’s assistance.
A recent court case12 highlighted that some known donors would like
to be
‘parents’ of the child, together with the current legal parents.
- This
issue is not likely to affect large numbers of people, however the Government
appreciates that it is of great significance to
those affected. Research has
shown that it is desirable for genetic parents to be involved in the
child’s life, if the parties
agree. However, the proposal raises complex
questions that are likely to attract diverse views. Before drawing conclusions
on the
Commission’s proposals, the Government will need to consider and
undertake further consultation on questions such as:
- Whether the
ability to formalise agreements under section 41 of the Care of Children Act
meets the needs of families wanting ‘known’
donors to have a formal
role in the child’s life;
7 Recommendations 9 and 10.
8 Recommendation 11.
9 Recommendation 12.
10 Recommendation 13.
11 Section 41of the Care of Children Act 2004.
12 P v K [2003] 2 NZLR 787, [2003] NZFLR 489 (HC); [2004]
NZFLR 752 (FC); [2004] 2 NZLR 421 (HC).
- The number of
legal parents the law should recognise for one child (AHR technology means that
a child could be conceived using genetic
material from more than two people);
and
- How the best
interests of the child are promoted and the extent to which they coincide with
the interests of the legal and genetic
parents.
- Known
donors and parents can formalise agreements about the donor’s role in a
court order. The Commission expressed concern
that the Court’s power to
vary such agreements disregards the intentions of the parties and recommended
that they should be
presumptively enforceable. The Government disagrees with
this recommendation. The State has a social and economic interest in promoting
sustainable and workable parent-child relationships. If a dispute arises (which
is when one party would be seeking enforcement of
an agreement), it is
appropriate for the Court to be able to reconsider the parties’
arrangements. In addition, the proposal
does not offer significant advantages
over the current law, as the Court could still vary the agreement if it is
demonstrably in
the child’s best interests to do so. The proposal would
also establish a legal anomaly by giving such agreements higher status
than
other court orders.
- The
Government disagrees with the Commission’s recommendation that parents and
donors should be required to receive independent
legal advice before having
agreements about the donor’s role made into court orders. The Government
does not consider the cost
to parties justifies the benefit. Parties are
increasingly participating in the Family Court in cases that are just as
complex, without
such a requirement being imposed on them. Information about
parenting agreements and orders is already available on the Ministry
of Justice
website and parenting orders must contain terms that the parties can understand
or an explanation of the order.
- The
Government appreciates the Commission’s reasons for recommending that it
should be possible in some circumstances to declare
a donor liable for child
support. This would place donors on an equal footing with step parents who can
be declared liable for child
support where they have assumed responsibility for
maintenance of the child. However, the Government has reservations about the
recommendation.
There is a real risk that potential child support liability
would have the effect of reducing egg and sperm donations and, given
the small
numbers of people involved, the overall benefits may not be great. This risk may
be minimised if information clearly explaining
the situations in which
‘known’ donors could be made liable for child support is available
to donors and parents. However,
the risks, together with complex issues such as
criteria for establishing a donor’s liability and apportioning payments
between
two liable parents, will need to be considered before the Government
forms any views on this proposal.
Law Commission recommendations – surrogacy
- The
Law Commission has recommended enacting specific mechanisms for transferring
parenthood to implement surrogacy arrangements.
These mechanisms would be
available for up to six months after the child is born and mean that intending
parents would not need
to adopt the child.13
13 Recommendation 15.
Government response
- At
present, the only way to transfer parenthood from the surrogate mother (and
potentially her partner) to the intending parents is
for the intending parents
to adopt the child. The adoption process is not well-suited for implementing
surrogacy arrangements for
many reasons, but primarily because the purpose of
adoption is ensuring a permanent and secure family relationship for a child
whose
parents are unable or unwilling to parent it. This is quite different from
surrogacy, where the purpose of the arrangements is to
create a child for the
intending parents. The result of difficulties in going through the adoption
process is that some parties to
surrogacy arrangements do not formalise the
transfer of parenthood or guardianship.
- Surrogacy
arrangements have been occurring in New Zealand for many years and many of these
cases receive ethical approval from a
state-appointed body.14 While
only a small number of people are affected by these laws, the issue is
significant for them and the numbers involved are likely
to grow if the trend of
deferred family formation continues.
- The
Government agrees that specific mechanisms are required for transferring
parenthood to implement surrogacy arrangements. Families
created by surrogacy
should not be disadvantaged through lack of certainty and clarity about parental
status. The Government will,
however, need to give careful consideration to the
design and legal implications of mechanisms for transferring
parenthood.
Law Commission recommendations – mistaken
implantation
- Mistaken
implantation may occur if a woman receiving fertility treatment is implanted or
inseminated with the wrong egg, sperm or
embryo. In such situations, the Law
Commission has recommended specifically allowing the court to make orders in
favour of, or extinguishing,
the legal parenthood of any one or more of a group
of adults with a proper interest in the parenthood of the
child.15
Government response
- Although
such cases will be very rare, the Government agrees that current laws deeming
the birth mother to be the legal mother and
her partner to be the father (or
other parent) may not provide sufficient scope for resolving questions over
legal parenthood where
mistaken implantation has occurred. Given the number of
adults who may claim or disclaim parenthood on the basis of a genetic or
gestational connection to the child and the range of possible individual
circumstances, such questions should be determined by a
court.
- Before
forming a view on this proposal, the Government will need to give further
consideration to:
14 Ethical approval is required for IVF surrogacy.
Ethical approval is not required if the parties do not require assistance from a
fertility
clinic (eg, if the surrogate mother’s own egg is used).
15 Recommendation 16.
- Whether it is
necessary to empower the court to clarify legal parenthood in cases of mistaken
implantation; and
- If so, whether
the court should be required to consider specific factors (and if so, which
factors) when making decisions about reassigning
parenthood.
Law Commission recommendations – counselling and
education
- The
Law Commission has identified two areas where it considers that the parents
involved would benefit from education and/or counselling.
It has
recommended:
- Requiring
fertility clinics to counsel all unpartnered women receiving donor gametes about
the importance of appointing a second guardian
for their child;16
and
- Imposing
mandatory screening and education for parents having a child through embryo
donation. The education would be on the challenges
of parenting a child with no
genetic connection.17
Government response
- The
Government disagrees with the Commission’s proposal to target unpartnered
women for counselling on the importance of appointing
a second guardian.
Fertility clinics already counsel all people using AHR procedures about the
importance of appointing a second
guardian. It is not clear that having a second
guardian would, of itself, improve the child’s life – the person
would
need to play a meaningful role in the child’s life. However, it is
sensible for parents to consider appointing a testamentary
guardian for their
children. The Government could consider making information available to all
people using AHR procedures about
the legal implications of those procedures on
the parenthood of the child and parenthood options.
- The
Commission has suggested mandatory screening and education in the context of
embryo donation, due to its similarities with adoption.
However, the Government
has adopted a self-regulatory approach to AHR. The HART Act requires the new
Ethics Committee on Assisted
Reproductive Technology (ECART) to provide advice
to the Minister of Health on embryo donation.18 In the meantime,
guidelines adopted by ECART require fertility clinics to screen intending
parents for criminal convictions and
to provide pre-treatment counselling
services to intending parents and donors. This counselling is also educative.
The Government
therefore considers it premature to impose a statutory
requirement for mandatory education or screening.
Information about Parentage and Parenthood
- The
Law Commission has made a series of recommendations aimed at addressing
difficulties people may have obtaining information about
their genetic
parentage.
16 Recommendation 14.
17 Recommendation 17.
18 Section 38(a) HART Act 2004.
Law Commission recommendations – birth certificates
- The
Law Commission has recommended that specific information be included, or be able
to be included, on birth certificates. In particular,
it proposed that:
- All birth
certificates include a statement indicating that the Births, Deaths and
Marriages Register contains other information that
may be accessed by the person
whose certificate it is;19 and
- Parents be able
to have an annotation put on birth certificates stating that the child was born
by “donor”.20
Government response
- Donor
offspring (those conceived from donor eggs or sperm or in surrogacy
arrangements) are reliant upon others to tell them about
the circumstances of
their birth before they can access information about their genetic heritage. The
Law Commission’s recommendations
aim to alert more people to the
possibility they may be donor-conceived and to encourage more parents to give
this information to
their children.
- The
Government understands the concern underlying the Commission’s
recommendation. However, it does not agree that a birth certificate
is the
appropriate place for a statement indicating that additional information may be
held by Births, Deaths and Marriages. It may
cause confusion for third parties
relying on birth certificates as a source of information, particularly overseas
organisations unfamiliar
with New Zealand registry documents. The Government
considers that including this information with birth certificate application
forms may be a more effective way of encouraging people to enquire about their
genetic origins. The Department of Internal Affairs
will consider this issue
further.
- The
proposal to allow parents to have their child’s birth certificate
annotated to state the child was born by ‘donor’
is likely to
facilitate openness, if used, and would be an alternative to the term ‘not
recorded’ for the father of donor
children born to single women. However,
before agreeing to implement this proposal, the Government will need to give
further consideration
to issues such as:
- Who would have
the right to add or remove the annotation;
- Whether an
annotation would cause any stigma for the child; and
- Whether an
annotation could be added if no other AHR information is held by Births, Deaths
and Marriages (eg, there is no donor information
recorded under the HART
Act).
Law Commission recommendations – counselling and
education
- The
Law Commission recommended that:
- Recipients of
donated gametes and embryos be required to attend pre- conception education
programmes;21
19 Recommendation 18.
20 Recommendation 19.
21 Recommendation 20.
- Fertility
clinics and counsellors develop a best-practice counselling protocol, to be
included in standards for their accreditation;22 and
- Consideration
should be given to whether counselling should be
mandatory.23
Government response
- The
Commission considered that families using donor gamete conception would benefit
from mandatory education and counselling. Education,
based on that provided by
Child, Youth and Family for adoptive parents, could provide information in a
group setting on the implications
of the lack of genetic connection between a
parent and child and the task of telling the child about their origins.
Counselling would
allow people to discuss the personal implications of using AHR
technology.
- The
Government does not agree that there should be a mandatory requirement to attend
education and counselling programmes. As noted
above, fertility clinics are
already required to provide pre-treatment counselling services to both intending
parents and donors.24 This counselling is also educative. The
proposal is inconsistent with the Government’s self-regulatory approach
to AHR and
would create inequities between those using fertility clinics and
those who make their own arrangements. People may even be deterred
from using
fertility clinics, which would be undesirable as clinics screen donor sperm for
infectious diseases. In addition, the
use of AHR and donor sperm or eggs is not
directly comparable to the adoption process, where the State has particular
responsibility
for ensuring the appropriate placement of
children.
- The
Government does, however, agree that it may be useful to explore whether there
is a need for a best practice counselling protocol.
Guidelines are currently
provided by the Australian and New Zealand Infertility Counsellors Association
(ANZICA). In order to be
accredited, fertility clinics are required to provide
counselling by a person with expertise recognised by (and preferably a member
of) ANZICA. Standards New Zealand is also currently developing a New Zealand
fertility standard that will include requirements
for fertility clinics to make
counselling available to users of their services and for counselling protocols
to be in place. The
Government could seek views from the Reproductive Technology
Accreditation Committee and ANZICA about whether the current guidelines
meet the
need for a ‘best practice’ consistent counselling
protocol.
Law Commission recommendations – information registers
and access to information
- The
Law Commission has made a number of recommendations aimed at promoting the
recording of genetic information and access to that
information.
- In
relation to the information registers established under the Human Assisted
Reproductive Technology Act 2004, the Commission has
proposed
that:
22 Recommendation 21.
23 Recommendation 21.
24 See paragraph 37.
- The voluntary
information register (for recording information about donor conceptions before
the Act came into force) be accompanied
by a publicity campaign designed to
reach as many donor offspring and donors as possible;25
- Counselling
(potentially paid or subsidised by the Government) be available for
donor-conceived offspring and donors using the voluntary
information
register;26 and
- The Government
consider providing subsidised DNA testing for people using the voluntary
information register.27
- The
Commission also recommended that the Government consider providing subsidised
DNA testing for people where real doubt exists as
to their
paternity.28
- To
promote better initial recording of genetic information, the Commission proposes
requiring parents of children born from gamete
donation or surrogacy without the
assistance of fertility clinics to provide the donor’s identifying
information to Births,
Deaths and Marriages. Such information would then be
added to the HART Act information register.29
- Finally,
the Commission recommended that the Government consider in its policy work on
minimum ages whether there should be an age
restriction on when children can
access their own genetic information.30
Government response
- Several
of the Commission’s recommendations have already been considered in the
context of the HART Act. In particular:
- In August 2005,
the Department of Internal Affairs commenced a targeted publicity campaign to
inform donors and donor offspring of
the voluntary HART Act register.
- The Government
has considered making counselling available for those accessing the compulsory
information register. Its preferred
approach, reflected in the HART Act, was to
require the Registrar-General to advise those accessing the register on the
desirability
of obtaining counselling. However, as the voluntary register was
added to the HART Act during the final stages of its consideration
by
Parliament, the Government agrees it could explore whether there is special
justification for providing services to those accessing
the voluntary register
that are not available to those accessing the compulsory register.
- The minimum age
at which children can access genetic information held on the HART Act register
was thoroughly canvassed during Parliament’s
consideration of the HART
Act. The Government does not consider there is any reason to reconsider the
issue at this stage.
25 Recommendation 23.
26 Recommendation 24.
27 Recommendation 25.
28 Recommendation 28.
29 Recommendations 26 and 27.
30 Recommendation 22.
- The
Government has not yet formed a view on whether it should provide subsidised DNA
testing, although the Commission has raised an
issue worthy of further
consideration. There are complex questions about the extent of the State’s
responsibility for misattribution
of parentage and correcting such
misattributions, and the appropriate role of the State in helping children
identify their genetic
origins. The Government will consider this proposal
further in the context of the Commission’s general proposals about DNA
parentage testing (see paragraphs 17
- 21 above).
- The
Government recognises that it is desirable for children conceived through sperm
donation or surrogacy outside of a fertility clinic
to have access to their
genetic information, particularly if the law allows that information to be
obscured by recording legal (rather
than genetic) parentage. However, the
Government would need to consider carefully whether and how a requirement to
provide such information
to Births, Deaths and Marriages could be effectively
enforced, before deciding whether or not to implement it.
Law Commission recommendations – policy objectives of
recording parentage and parenthood information
- The
Law Commission has recommended that the Government should identify policy
objectives for recording legal parents and genetic information,
and develop
strategies for achieving these objectives.31
Government response
- A
number of agencies have an interest in ensuring birth information identifies all
legal parents. The Commission has also suggested
the Government has a broader
obligation under the United Nations Convention on the Rights of the Child to
provide a repository of
genetic information. The Government agrees there is
scope for agencies to work together to give further thought to ways of improving
the recording of accurate and complete birth information.
CONCLUSION
- The
Government is grateful to the Law Commission for providing this report. As noted
earlier, every New Zealander is affected by parenthood
laws. Questions about who
is and who should be a legal parent, and the role of the State in facilitating
changes to legal parenthood
and access to information about parentage, are of
fundamental importance to our society.
- The
Commission’s report will provide valuable guidance and promote informed
debate as the Government progresses work on issues
relating to legal
parenthood.
31 Recommendation 29.
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