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Te Kôpû Whângai : He Arotake. Review of Surrogacy [2021] NZLCIP 47; Te Kôpû Whângai : He Arotake. Review of Surrogacy [2021] NZLCIP 47
Last Updated: 1 August 2021
@njesseApter aM,
Hōngongoi | July 2021
Te Whanganui-a-Tara, Aotearoa Wellington, New Zealand
He Puka Kaupapa | Issues Paper 47
Te Kōpū Whāngai: He Arotake
Review of Surrogacy
Te Aka Matua o te Ture | Law Commission is an independent,
publicly funded, central advisory body established by statute to undertake
the
systematic review, reform and development of the law of Aotearoa New Zealand.
Its purpose is to help achieve law that is just,
principled and accessible and
that reflects the values and aspirations of the people of Aotearoa New
Zealand.
Te Aka Matua in the Commission’s Māori name refers to
the parent vine that Tāwhaki used to climb up to the heavens.
At the foot
of the ascent, he and his brother Karihi find their grandmother Whaitiri, who
guards the vines that form the pathway
into the sky. Karihi tries to climb the
vines first but makes the error of climbing up the aka taepa or hanging vine. He
is blown
violently around by the winds of heaven and falls to his death.
Following Whaitiri’s advice, Tāwhaki climbs the aka matua
or parent
vine, reaches the heavens and receives the three baskets of knowledge.
Kia whanake ngā ture o Aotearoa mā te arotake
motuhake
Better law for Aotearoa New Zealand through independent
review
The
Commissioners are:
Amokura Kawharu – Tumu Whakarae | President
Helen McQueen – Tumu Whakarae Tuarua | Deputy President Donna
Buckingham – Kaikōmihana | Commissioner
Te Aka Matua o te Ture | Law Commission is located at:
Level 9, Solnet House, 70 The Terrace, Wellington 6011
Postal address: PO Box 2590, Wellington 6140, Aotearoa New Zealand Document
Exchange Number: SP 23534
Telephone: 04 473 3453 Email:
com@lawcom.govt.nz Internet:
www.lawcom.govt.nz
The Māori language version of this Issues Paper’s title was
developed for Te Aka Matua o te Ture | Law Commission by Kiwa
Hammond and
Maakere Edwards of Aatea Solutions Limited. The title was finalised in
conjunction with the Commission’s Māori
Liaison Committee.
Kei te pātengi raraunga o Te Puna Mātauranga o
Aotearoa te whakarārangi o tēnei pukapuka. A catalogue record for
this
title is available from the National Library of New Zealand.
ISBN 978-0-9951291-1-5 (Online)
ISSN 1177-7877 (Online)
This title may be cited as NZLC IP47. This title is available on the internet
at the website of Te Aka Matua o te Ture | Law Commission:
www.lawcom.govt.nz
Copyright © 2021 Te Aka Matua o te Ture | Law
Commission.
This work is licensed under the Creative Commons Attribution 4.0
International licence. In essence, you are free to copy, distribute
and adapt
the work, as long as you attribute the work to Te Aka Matua o te Ture | Law
Commission and abide by other licence terms.
To view a copy of this licence,
visit https://creativecommons.org/licenses/by/4.0
- FOREWORD TE
AKA MATUA O TE TURE | LAW COMMISSION
Foreword
For many New Zealanders,
having children is an important aspiration. For some New Zealanders, surrogacy
provides an opportunity to
have a child when they are otherwise unable to do
so.
Surrogacy has become an established method of family building in Aotearoa New
Zealand and around the world. However, because surrogacy
relies on the
participation of a third party to create a child, it can raise complex legal,
ethical and medical issues. It can also
raise issues of concern to Māori,
particularly in relation to tikanga (customary practices), whakapapa (genealogy)
and whanaungatanga
(kinship).
Te Aka Matua o te Ture | Law Commission is examining surrogacy law, regulation
and practice in Aotearoa New Zealand. It will make
recommendations to the
Government to ensure that the law meets the needs and expectations of New
Zealanders and protects the rights
and interests of people involved in surrogacy
arrangements, including children born as a result of a surrogacy arrangement,
surrogates
and intended parents.
In this Issues Paper, we identify the issues with the current law, outline our
guiding principles for surrogacy law reform and discuss
options for reform that
aim to reflect these principles.
A key problem with the current law relates to legal parenthood. The law does not
recognise surrogacy as a process that creates a
legal parent-child relationship
between the intended parents and the surrogate-born child. Instead, the
surrogate and her partner
(if she has one) are the legal parents at birth,
according to rules that were originally designed to clarify the legal status of
gamete donors. Intended parents must adopt the child under the Adoption Act 1955
to be recognised in law as the child’s parents.
We think it is time the law caught up with the reality of surrogacy
arrangements. In this Issues Paper, we propose a new legal framework
to provide
for the recognition of the intended parents as the legal parents of a
surrogate-born child.
Other significant matters we address in this Issues Paper include the financial
support that should be available to surrogates, the
information that should be
available to surrogate-born children and how New Zealand law should accommodate
international surrogacy
arrangements.
We encourage all New Zealanders to have their say. The feedback we receive on
this Issues Paper will influence the final recommendations
we will make in our
report to the Government in 2022.
Amokura Kawharu
Tumu Whakarae | President
- HAVE
YOUR SAY TE AKA MATUA O TE TURE | LAW COMMISSION
Have your say
We
want to know what you think about the issues, options and proposals set out in
this paper.
Submissions on our Issues Paper must be received by 23 September 2021. You can
make a submission online at surrogacy-consultation.lawcom.govt.nz.
You can email your submission to surrogacy@lawcom.govt.nz.
You can post your submission to Review of Surrogacy Law Commission
PO Box 2590
Wellington 6140
WHAT HAPPENS
TO YOUR SUBMISSION?
Te Aka Matua o te Ture | Law Commission will use your submission to inform our
review, and we may refer to your submission in our
publications. We will also
keep all submissions as part of our official records. Information supplied to
the Commission is subject
to the Official Information Act 1982.
We will publish the submissions we receive on our website once we have
published our final report. Your submission will be publicly
available, but we
will not publish your name or contact details if you are submitting as an
individual and not on behalf of an organisation.
If you do not want us to release identifying information or any other part of
your submission or do not want your submission
to be referred to in our
publications, please explain in your submission which parts should be
withheld and the reasons. We will
take your views into account in
deciding:
- whether to
withhold or release any information requested under the Official Information
Act;
- if and how to
make your submission publicly available on our website; and
- if and how to
refer to your submission in our publications.
The Commission complies with the Privacy Act 2020, which governs how it
collects, holds, uses and discloses personal information
you provide. You have
the right to access and correct your personal
information.
- ACKNOWLEDGEMENTS TE
AKA MATUA O TE TURE | LAW COMMISSION
Acknowledgements
Te
Aka Matua o te Ture | Law Commission gratefully acknowledges the contributions
of the people and organisations that have shaped
our Issues Paper, especially
those individuals who generously shared with us their personal experiences of
surrogacy.
We acknowledge the generous contribution and expertise from our Expert Advisory
Group:
- Dr Claire
Achmad
- Associate
Professor Debra Wilson
- Margaret Casey
QC
- Stewart
Dalley
We are also grateful for the support and guidance of the Māori Liaison
Committee to Te Aka Matua o te Ture | Law Commission.
We acknowledge individuals who have engaged with us to share an ao Māori
perspective on surrogacy, including Annabel Ahuriri-Driscoll
(Ngāti Porou,
Ngāti Kauwhata, Rangitāne, Ngāti Kahungunu), Professor Jacinta
Ruru (Raukawa, Ngāti Ranginui,
Ngāti Maniapoto, Pākehā),
Karaitiana Taiuru (Ngāi Tahu, Ngāti Rārua, Ngāti Kahungunu,
Pākehā),
Professor Marewa Glover (Ngāpuhi) and Te Ripowai Higgins
(Tūhoe).
We emphasise nevertheless that the views expressed in this Issues Paper are
those of the Commission and not necessarily those of
the people who have helped
us.
Nō reira, ko tēnei mātou e mihi nei ki a koutou, kua whai wā
ki te āwhina i a mātou. Tēnā
koutou, tēnā koutou,
tēnā koutou katoa.
The Commissioner responsible for this project is Helen McQueen. The project is
led by Principal Legal and Policy Adviser Nichola
Lambie. The legal and policy
advisers who have worked on this Issues Paper are Briar Peat (Ngāti
Rangiwewehi, Ngāti Whakaue)
and Samuel Mellor. The law clerks who have
worked on this Issues Paper are Georgia Drummond, Marko Garlick and Natalie
Vaughan.
Contents
Glossary
Key
abbreviations and terms used in this Issues Paper are set out below. Our
approach has been to adopt the terminology that is most
widely used and
understood, but we acknowledge that there are different views on appropriate
terminology.
We have included basic explanations of lesser-known Māori terms throughout
this Issues Paper to assist readers with understanding
their meaning in the
specific context in which they are used. We note that these explanations are not
intended to be prescriptive
or reductive and do not necessarily reflect the
depth and breadth of meaning of these words in te reo Māori.
ACART
|
Advisory Committee on Assisted Reproductive Technology. ACART is
established under the HART Act and issues guidelines to ECART on
the approval of gestational surrogacy arrangements.
|
altruistic surrogacy
|
Where the surrogate does not receive any payment for entering into
a
surrogacy arrangement other than payment for reasonable
expenses.
|
artificial insemination
|
An assisted reproductive procedure where sperm is artificially introduced
into a woman’s body.
Artificial insemination is used in traditional surrogacy
arrangements. The procedure can be completed with or without the assistance
of a fertility clinic.
|
commercial surrogacy
|
Where the surrogate agrees to the surrogacy arrangement in
exchange for the payment of a fee or other consideration. Commercial surrogacy
is often characterised by contractual arrangements
and the involvement of
for-profit intermediaries that facilitate surrogacy arrangements.
|
domestic surrogacy
|
A surrogacy arrangement where the surrogate and the
intended parent(s)
live in the same country.
|
donor(s)
|
The person or people who donate human gametes (ova or sperm) for
reproductive purposes.
|
ECART
|
Ethics Committee on Assisted Reproductive Technology. ECART is
responsible under the HART Act for approving gestational surrogacy
arrangements in accordance with guidance issued by ACART.
|
gamete
|
A gamete is a human reproductive cell. A female gamete is called an
ovum (plural is ova). Male gametes are called sperm.
|
gestational surrogacy
|
A surrogacy arrangement where the surrogate does not use her own
ovum in conception. Instead, an embryo is created using an ovum and sperm from
the intended parents or donors. The embryo is then implanted in
the surrogate.
|
|
In a gestational surrogacy, the surrogate is not the genetic
mother of the child, and the child is usually genetically linked to one or both
intended parents.
Gestational surrogacy is also known as “full surrogacy”,
“host surrogacy” or “IVF surrogacy”.
|
international surrogacy
|
A surrogacy arrangement where the intended parent(s) and
surrogate do not live in the same country.
|
in vitro fertilisation (IVF)
|
An assisted reproductive procedure where an ovum is combined with sperm
outside the body.
IVF is used in gestational surrogacy arrangements and
requires the assistance of a fertility clinic.
|
HART Act
|
Human Assisted Reproductive Technology Act 2004.
|
HART Order
|
Human Assisted Reproductive Technology Order 2005.
|
intended parent(s)
|
A single person or couple who enter a surrogacy arrangement with the
intention of becoming parents to a surrogate-born child and caring for
that child from birth.
We refer to an intended parent who is female as an intended
mother and an
intended parent who is male as an intended father, where
appropriate.
|
New Zealander
|
A New Zealand citizen or a New Zealand resident.
|
surrogacy arrangement
|
An arrangement between a surrogate and intended parent(s)
where the surrogate agrees to become pregnant and carries and
delivers a child for the intended parent(s) to raise as the child’s
parents.
|
Surrogacy Survey
|
A survey of public attitudes on surrogacy conducted by Te Whare
Wānanga o Waitaha | University of Canterbury in 2017-2018.
|
surrogate
|
The woman who agrees to become pregnant and carries and delivers a child
for the intended parent(s) under a surrogacy arrangement.
This Issues Paper refers to the surrogate as a woman and uses the
pronouns she/her, consistent with the language of the HART Act. In doing
so, the Commission intends to include any person who can become pregnant. We
acknowledge that trans men, takatāpui
(a term encompassing diverse
Māori gender and sexual identities) and other gender-diverse people may
also become pregnant and
may, therefore, also act as a surrogate.
|
surrogate-born child
|
A child born as a result of a surrogacy arrangement.
|
traditional surrogacy
|
A surrogacy arrangement where the surrogate’s ovum is
used in conception, meaning she is the child’s genetic mother. Pregnancy
is usually achieved by artificial insemination using the sperm of an
intended parent or a donor.
Traditional surrogacy is also known as “partial
surrogacy” or “genetic surrogacy”.
|
CHAPTER 1
Introduction
Te Aka Matua o te Ture | Law Commission (the Commission) is reviewing surrogacy
law, regulation and practice in Aotearoa New Zealand.
Surrogacy is an
arrangement where a woman (the surrogate) agrees to become pregnant and carries
and delivers a child for another
person or couple (the intended parent(s)) who
intend to raise the child from birth.
- 1.2 Surrogacy
provides people with an opportunity to build their family when they are unable
to have a child themselves. However,
because surrogacy relies on the
participation of a third party to create a child, it can raise complex legal,
ethical and medical
issues.
- 1.3 Surrogacy
may also raise matters of particular concern to Māori. It raises questions
about whether Māori are enabled
by surrogacy law and regulation to act in
accordance with tikanga (customary practices), access to information about and
implications
for whakapapa (genealogy), the legal status of whāngai
arrangements in the surrogacy context and Māori representation in
oversight
arrangements.
- 1.4 In 2005, the
Commission examined aspects of surrogacy law and found there was an urgent need
for reform.1 Since then, there
have been no changes to the legal framework, but both demand for surrogacy and
dissatisfaction with the current
regime have grown. In 2019, a petition with
32,239 signatures was presented to Parliament calling for changes to Aotearoa
New Zealand’s
surrogacy and adoption laws.2
- 1.5 A central
proposal in this Issues Paper is for a new legal framework to provide for the
recognition of the intended parents as
the legal parents of a surrogate-born
child. This should replace reliance on adoption laws in the surrogacy context.
The new legal
framework should link in with the existing approval process for
surrogacy arrangements so that intended parents and surrogates are
not required
to complete two separate legal processes.
- 1.6 The purpose
of this Issues Paper is to ask for your views on this and other options for
reform that seek to address the issues
with the current law.
- 1.7 The feedback
we receive will help us decide what recommendations for reform to make in our
report to the Government in 2022.
1 Te Aka Matua o te Ture |
Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
[7.57].
- Petition
of Christian John Newman “Update the Adoption Act 1955 to simplify and
speed up the process for adoption” (2017/409,
presented to Parliament 3
October 2019).
OUR TERMS OF REFERENCE
- 1.8 The
terms of reference for this review were published in March 2021. They require us
to consider:
(a) surrogacy from an ao Māori perspective and how
the law should address any matters of particular concern to Māori;
(b) how surrogacy arrangements should be regulated in Aotearoa New
Zealand;
(c) whether the types of payments intended parents can make under a surrogacy
arrangement should be expanded and, if so, what types
of payments should be
permitted;
(d) how the law should attribute legal parenthood in surrogacy
arrangements;
(e) how international surrogacy arrangements (where either the intended
parent(s) or the surrogate live overseas) should be provided
for in New Zealand
law; and
(f) what information should be available to children born from surrogacy
arrangements.
- 1.9 Our review
considers various statutes as they apply to surrogacy arrangements, including
the Human Assisted Reproductive Technology
Act 2004 (HART Act), Status of
Children Act 1969 and Adoption Act 1955.
OUR APPROACH TO THE BROADER QUESTIONS
- 1.10 Surrogacy
attracts a range of different views on two broad questions. 3 First, should surrogacy be
permitted or prohibited? Second, should commercial surrogacy arrangements be
permitted? These broad questions
are not the focus of our terms of reference for
the reasons we discuss
below.
Should
surrogacy be permitted or prohibited?
- 1.11 Globally,
there is no universal consensus on the question of whether surrogacy should be
permitted or prohibited in all forms.
Countries take different approaches,
reflecting the different social, ethical, political, cultural, traditional and
legal views
on surrogacy that exist worldwide.4
- 1.12 In Aotearoa
New Zealand, Parliament clarified in 2004 that surrogacy is permitted if
certain conditions are met. 5
This is consistent with the approach to surrogacy in comparable
countries including Australia, England, Wales, Scotland and
Canada.
- We
acknowledge the extensive body of academic research and literature exploring
surrogacy from ethical, human rights and feminist
perspectives. We do not
attempt a comprehensive summary of that work in this Issues Paper. We have,
however, been cognisant of that
work in our consideration of the issues and when
developing the options for reform presented throughout this Issues Paper.
- Claire
Fenton-Glynn and Jens M Scherpe “Surrogacy in a Globalised World:
Comparative Analysis and Thoughts on Regulation”
in Jens M Scherpe, Claire
Fenton-Glynn and Terry Kaan (eds) Eastern and Western Perspectives on
Surrogacy (Intersentia, Cambridge (UK), 2019) 515 at
517.
5 Human Assisted
Reproductive Technology Act 2004, s 14.
- 1.13 Since 2004,
surrogacy has become a legitimate and established method of family building in
Aotearoa New Zealand. As we explain
in Chapter 2, New Zealanders’ use of
surrogacy is steadily increasing, and public opinion supports surrogacy
continuing to
be legal. In addition, the growing body of empirical research into
the impact of surrogacy arrangements outlined in Chapter 2 demonstrates
largely
positive outcomes for surrogates and families with surrogate-born children.
- 1.14 For these
reasons, while we acknowledge the lack of universal consensus on whether
surrogacy should be permitted or prohibited,
this review does not reconsider
Parliament’s decision to permit surrogacy in Aotearoa New Zealand.
- 1.15 We think it
is also important to recognise that any attempt to prohibit surrogacy is
unlikely to succeed. 6 The
reality is that traditional surrogacy arrangements can take place privately
without any official approval or recognition. In addition,
intended parents can
travel overseas to countries where surrogacy is legal and enter international
surrogacy arrangements. In Australia,
attempts by some states to prohibit
intended parents from entering international commercial surrogacy arrangements
have been seen
as a “failed experiment”.7 In Ireland, where surrogacy
remains unregulated, the reality of international commercial surrogacy has been
recognised as a strong
reason for preferring regulation of domestic surrogacy
rather than prohibition.8
- 1.16 Our
approach to this review is therefore to ensure surrogacy is regulated in a way
that protects and promotes the rights and
interests of surrogate-born children,
surrogates and intended parents. We discuss our approach in greater detail in
Chapter
3.
Should
commercial surrogacy arrangements be permitted?
- 1.17 Surrogacy
arrangements are often categorised as either “commercial” or
“altruistic”. Under a commercial
surrogacy arrangement, the
relationship between the intended parents and the surrogate is a contractual
one, and the surrogate receives
a fee or other consideration for her role that
may go beyond compensation for any reasonable expenses she incurs. Commercial
arrangements
are typically characterised by the involvement of for-profit
intermediaries that bring together intended parents and surrogates and
mediate
the ongoing surrogacy arrangement for a fee. Under an altruistic surrogacy
arrangement, the surrogate does not receive any
payment other than for
reasonable expenses incurred.
- As
the authors noted in Margaret Brazier, Alastair Campbell and Susan Golombok
Surrogacy: Review for Health Ministers of Current Arrangements for Payments
and Regulation – Report of the Review Team (Cmnd 4068, October 1998)
at [4.38]: “[u]nless a state is prepared to police the bedrooms of the
nation, surrogacy arrangements
cannot effectively be outlawed, only driven
underground”.
- Debra
Wilson and Julia Carrington “Commercialising Reproduction: In Search of a
Logical Distinction between Commercial, Compensated,
and Paid Surrogacy
Arrangements” (2015) 21 NZBLQ 178 at 186. See also South Australian Law
Reform Institute Surrogacy: A Legislative Framework – A Review of Part
2B of the Family Relationships Act 1975 (SA) (Report 12, 2018) at [12.3.1];
and House of Representatives Standing Committee on Social Policy and Legal
Affairs Surrogacy Matters: Inquiry into the regulatory and legislative
aspects of international and domestic surrogacy arrangements (Parliament of
the Commonwealth of Australia, April 2016) at [1.70]–[1.71] and
[1.112]–[1.113].
- Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(Department of Children, Equality, Disability, Integration and Youth,
Ireland, December 2020) at 6–8.
- 1.18 Commercial
surrogacy is prohibited in Aotearoa New Zealand and in many other
countries. It is, however, legal in a handful
of jurisdictions, including
several states in the United States as well as Ukraine, Georgia and Russia.
- 1.19 Whether
surrogacy should be permitted on a commercial basis or limited to altruistic
arrangements is a question that attracts
a significant amount of attention.
Commercial surrogacy is typically opposed on the grounds that it is inherently
exploitative and
commodifies women and children. 9 More recently, concern has
focused on children’s rights and the risk that some commercial
surrogacy arrangements may constitute
the sale of children under international
human rights law (as we discuss in Chapter 3).10 However, these views are not
universally held. Some contest the view that commercial surrogacy amounts to the
sale of children or
the commodification of women and children.11 Others also suggest that
prohibiting commercial surrogacy can in fact create conditions for exploitation
of women because it prevents
surrogates from being treated fairly.12
- 1.20 For the
purposes of our review, it is important to recognise that the precise
distinction between commercial and altruistic surrogacy
is unclear. There is
considerable variation amongst altruistic and commercial models. In addition,
regimes that are altruistic in
nature may present the same risks as commercial
regimes, depending on the terms of the arrangement and the legal protections in
place.
13 Conversely,
commercial surrogacy arrangements may be motivated by altruism. 14 For these reasons, relying on
a rigid distinction between commercial and altruistic surrogacy can be
unhelpful.15
- 1.21 Our
approach in this review is therefore to examine each element of surrogacy law
and regulation on its merits in accordance
with the guiding principles we
outline in Chapter 3.
- See,
for example, Usha Rengachary Smerdon “Crossing Bodies, Crossing Borders:
International Surrogacy Between the United States
and India” (2008) 39
Cumb L Rev 15 at 51–62.
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including child prostitution, child pornography
and
other child sexual abuse material UN Doc A/73/174 (17 July 2018); Maud de
Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including child prostitution, child pornography
and
other child sexual abuse material UN Doc A/74/162 (15 July 2019); and
Committee on the Rights of the Child List of issues in relation to the report
submitted by the United States of America under article 12 (1) of the Optional
Protocol to
the Convention on the Rights of the Child on the sale of children,
child prostitution and child pornography UN Doc CRC/C/OPSC/USA/Q/3-4 (7
October 2016) at [7].
- See,
for example, Rhonda Powell “Exploitation of Surrogate Mothers in New
Zealand” in Annick Masselot and Rhonda Powell
(eds) Perspectives on
Commercial Surrogacy in New Zealand: Ethics, Law, Policy and Rights (Centre
for Commercial & Corporate Law, Te Whare Wānanga o Waitaha | University
of Canterbury, Christchurch, 2019) 57 at
61; and Committee on the Rights of the
Child List of issues in relation to the report submitted by the United States
under article 12 (1) of the Optional Protocol to the Convention
on the Rights of
the Child on the sale of children, child prostitution and child pornography:
Addendum UN Doc CRC/C/OPSC/USA/Q/3-4/Add.1 (23 March 2017) at [35].
- Rhonda
Powell “Exploitation of Surrogate Mothers in New Zealand” in Annick
Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New
Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 57 at
58; and Ruth Walker and Liezl van Zyl Towards a
Professional Model of Surrogate Motherhood (Palgrave MacMillan, London,
2017) at 44.
- Debra
Wilson “Avoiding the Public Policy and Human Rights Conflict in Regulating
Surrogacy: The Potential Role of Ethics Committees
in Determining Surrogacy
Applications” (2017) 7 UC Irvine L Rev 653 at 662.
- Ruth
Walker and Liezl van Zyl Towards a Professional Model of Surrogate Motherhood
(Palgrave MacMillan, London, 2017) at 12; Debra Wilson Rethinking
Surrogacy Laws: Te Kohuki Ture Kopu Whangai – Overview of Report (Te
Whare Wānanga o Waitaha | University of Canterbury, May 2020) at
40–41.
- A
similar view was expressed in Law Commission of England and Wales and Scottish
Law Commission Building families through surrogacy: A new law – A joint
consultation paper (CP244/DP167, 2019) at [2.14]–[2.18]; and South
Australian Law Reform Institute Surrogacy: A Legislative Framework – A
Review of Part 2B of the Family Relationships Act 1975 (SA) (Report 12,
2018) at [3.2.1]–[3.2.12].
In Chapter 6, we discuss the types of payments that could be made to
surrogates. In Chapter 10, we look at whether surrogacy agencies
should be
able to operate as intermediaries in Aotearoa New Zealand and, if so, on what
basis.
OUR PROCESS SO FAR
- 1.22 To
identify issues and options for reform, we have reviewed relevant legislation,
case law, reports and commentary. We have examined
how surrogacy arrangements
are entered in practice, when and how surrogacy arrangements are approved and
how the courts approach
legal parenthood in the context of surrogacy. We have
obtained data relating to how New Zealanders use surrogacy both within Aotearoa
New Zealand and overseas, which we explore in Chapter 2.
- 1.23 We have
analysed the research undertaken by Te Whare Wānanga o Waitaha | University
of Canterbury as part of its research
project Rethinking Surrogacy Laws.
This includes a survey of public attitudes on surrogacy conducted in
2017-2018 (the Surrogacy Survey), a lawyers’ survey and
interviews with
Family Court judges.
- 1.24 We have met
with people who have participated in surrogacy arrangements in Aotearoa New
Zealand, including intended parents who
have had (or are hoping to have) a child
through surrogacy, surrogates, a surrogate’s partner and an ovum donor. We
learned
about each person’s unique experience and the issues they faced.
These experiences covered a wide range of different scenarios
including
traditional and gestational surrogacy arrangements, altruistic and commercial
surrogacy arrangements and domestic and international
surrogacy arrangements. In
addition, we have met with representatives from Aotearoa New Zealand’s
three fertility clinics,
academics and lawyers to hear their preliminary views.
We have also met with officials from the different government agencies that
have
a role in the regulation of surrogacy arrangements.
- 1.25 We have
drawn on the Commission’s work when it reviewed legal parenthood in
surrogacy arrangements in 2005. 16
We have considered proposals made in three Members’ Bills that
addressed the regulation of surrogacy17 and the petition presented to
Parliament in 2019.18
- 1.26 We have
examined the law and reform initiatives in comparable jurisdictions, with a
particular focus on Australia, England and
Wales, Scotland, Ireland and Canada.
We met with the Law Commission of England and Wales and the Scottish Law
Commission on their
current review of surrogacy law. We have also given
particular attention to international developments. Since 2010, the Hague
Conference
on Private International Law has been considering international law
issues relating to legal parenthood generally
16 Te Aka Matua o te Ture |
Law Commission New Issues in Legal Parenthood (NZLC R88, 2005).
- Improving
Arrangements for Surrogacy Bill 2021 (undrawn Member’s Bill, Tāmati
Coffey MP); Care of Children (Adoption and
Surrogacy Law Reform) Amendment Bill
2012 (undrawn Member’s Bill, Kevin Hague MP); and Jacinda Ardern
MP’s Member’s
Bill, Care of Children Law Reform Bill 2012
(62-1).
- Petition
of Christian John Newman “Update the Adoption Act 1955 to simplify and
speed up the process for adoption” (2017/409,
presented to Parliament 3
October 2019).
and international surrogacy arrangements in particular.19 In addition, earlier in 2021
the International Social Service published a set of principles for the
protection of the rights of children
born through surrogacy (the Verona
Principles) with the support of the United Nations Committee on the Rights of
the Child.20 This followed two
thematic reports on surrogacy by the United Nations Special Rapporteur. 21 We refer to this work where
relevant throughout this Issues Paper.
- 1.27 We have
worked to inform ourselves of the interests of Māori in this area and
appreciate from Māori the nature and
cultural dimensions of surrogacy
within te ao Māori. We have drawn on relevant commentary and feedback
provided by several Māori
academics and have been guided on our approach by
the Commission’s Māori Liaison Committee.
- 1.28 We met with
our Expert Advisory Group to seek the Group’s feedback on our proposed
approach to the Issues Paper and took
into account the feedback we
received.
SUMMARY OF THIS PAPER
- 1.29 This
Issues Paper is organised into 10 chapters. We ask questions throughout the
Issues Paper to seek your views. You can respond
to any or all of these
questions and raise any issues we have not
discussed.
Surrogacy in
practice
- 1.30 In Chapter
2, we examine New Zealanders’ participation in surrogacy both in Aotearoa
New Zealand and overseas. We suggest
that, based on available information, up to
50 children are born as a result of a surrogacy arrangement each year. We also
explore
New Zealanders’ changing attitudes to surrogacy as reflected by
the Surrogacy Survey and research that examines the impact
of surrogacy on
surrogate-born children, their families and
surrogates.
Guiding
principles for surrogacy law reform
- 1.31 In Chapter
3, we discuss our guiding principles for surrogacy law reform. We think that
applying these principles will produce
good surrogacy law that protects and
promotes the rights and interests of people involved in surrogacy arrangements
and meets the
needs and expectations of New Zealanders. These guiding principles
are as follows:
- The best
interests of the surrogate-born child should be paramount.
- Surrogacy law
should respect the autonomy of consenting adults in their private lives.
- Effective
regulatory safeguards must be in place.
- For
more information on the Parentage / Surrogacy Project, see Permanent Bureau of
the Hague Conference on Private International Law
“Parentage /
Surrogacy” <www.hcch.net>.
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021).
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including child prostitution, child pornography
and
other child sexual abuse material UN Doc A/74/162 (15 July 2019); and Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including child prostitution, child pornography
and
other child sexual abuse material UN Doc A/HRC/37/60 (15 January
2018).
- Parties should
have early clarity and certainty about their rights and obligations.
- Intended parents
should be supported to enter surrogacy arrangements in Aotearoa New Zealand
rather than offshore.
- Surrogacy law
should enable Māori to act in accordance with tikanga and promote
responsible kāwanatanga (the right of the
Crown to govern) that facilitates
tino rangatiratanga (the right of Māori to exercise authority according to
tikanga).
Māori and
surrogacy
- 1.32 In Chapter
4, we consider aspects of te ao Māori relevant in the surrogacy context,
Māori perspectives on surrogacy
and matters that may be of particular
concern to Māori in surrogacy practice, law and regulation. We identify
potential issues
and options for reform in relation to whether Māori are
enabled by surrogacy law and regulation to act in accordance with tikanga,
access to information about and implications for whakapapa, the legal status of
whāngai arrangements in the surrogacy context
and Māori representation
in oversight
arrangements.
Approving
surrogacy arrangements
- 1.33 In Chapter
5, we consider how gestational surrogacy arrangements are approved in Aotearoa
New Zealand by the Ethics Committee
on Assisted Reproductive Technology (ECART)
under the HART Act. The requirement for ECART approval is an important safeguard
that
protects the rights and interests of people affected by a surrogacy
arrangement. However, several problems have been identified with
the way the
ECART process works in practice, such as the cost, delay and complexity of the
process. Another question raised in this
review is whether intended parents
should have their parental suitability assessed in the same way as prospective
adoptive parents.
We explore these issues and identify options for reform. We
also consider options to make the ECART process available in traditional
surrogacy
arrangements.
Financial
support for surrogates
- 1.34 In Chapter
6, we look at the financial support available to surrogates in Aotearoa New
Zealand. A key problem with the current
law is the uncertainty as to what
financial support surrogates are entitled to. This can place unnecessary stress
on the parties,
leave the surrogate out of pocket and create barriers for women
considering acting as surrogates. We propose clarifying and expanding
the costs
that can be paid in a surrogacy arrangement and clarifying the surrogate’s
entitlements to post-birth recovery leave
and payments provided they meet the
employment thresholds under the Parental Leave and Employment Protection Act
1987.
- 1.35 We also
examine the arguments for and against permitting intended parents to pay
surrogates a fee for their participation in
a surrogacy arrangement. On balance,
our preliminary view is that a fee should not be permitted, but we are
interested in views on
this
issue.
Legal parenthood
- 1.36 In Chapter
7, we focus on who are the legal parents of a surrogate-born child under the
current law, including the need for intended
parents to adopt their child under
the
Adoption Act. We explore two key problems. First, the legal parenthood laws fail
to reflect the reality of surrogacy arrangements,
and second, the adoption
process is inappropriate in surrogacy arrangements.
- 1.37 We propose
a new legal framework to provide for the recognition of the intended parents as
the legal parents of a surrogate-born
child. This legal framework could sit
within the Status of Children Act, which governs legal parenthood of children
conceived as
a result of assisted human reproduction procedures, or in new
stand-alone surrogacy legislation.
- 1.38 We propose
to introduce two alternative pathways to legal parenthood:
- Pathway 1 would
apply when the surrogacy arrangement was approved by ECART. The intended parents
would be recognised as the legal
parents of the surrogate-born child by
operation of law, without the need for a court order, provided the surrogate
confirms her
consent after the baby is born.
- Pathway 2 would
apply whenever Pathway 1 does not apply. It would allow intended parents to
apply to the Family Court after the child
is born for an order recognising them
as the child’s legal parents.
- 1.39 This
proposed legal framework would provide greater certainty and minimise the
administration, cost and delay in recognising
intended parents as the
surrogate-born child’s legal parents, by relying on the safeguards already
in place under the ECART
approval
process.
Children’s
rights to identity and access to information
- 1.40 In Chapter
8, we focus on children’s rights to identity and different options to
ensure that information is available to
a surrogate-born child about their
genetic and gestational origins. We identify two broad options for reform.
Option 1 involves making
changes to the birth registration system and
information that is recorded on a surrogate-born child’s birth
certificate. Option
2 involves recording information about surrogacy
arrangements on the register established for donor conception under the HART
Act.
International
surrogacy
- 1.41 In Chapter
9, we look at how the law in Aotearoa New Zealand should provide for
international surrogacy. We consider the complex
issues that international
surrogacy can present, which are caused by the disparity in how different
countries regulate surrogacy
and legal parenthood. In some countries, a
surrogacy arrangement may lack the same protections for the child, the surrogate
and the
intended parents as an arrangement entered in Aotearoa New Zealand,
potentially placing the parties and any resulting child at greater
risk.
- 1.42 We propose
that Aotearoa New Zealand should continue to provide a process for recognising
intended parents’ legal parenthood
when they undertake surrogacy
arrangements overseas. We think that intended parents should be able to utilise
Pathway 2, described
above, and obtain a Family Court order recognising them as
the child’s legal parents. We ask whether this order should be obtained
before or after entry to Aotearoa New Zealand. We also consider other options,
such as a recognition system for some overseas judicial
decisions and greater
education and information for intended parents considering international
surrogacy.
Access to surrogacy
- 1.43 In Chapter
10, we look at other problems New Zealanders face when trying to access
surrogacy in Aotearoa New Zealand. We outline
concerns relating to the
availability of information, advertising for surrogates, barriers to connecting
intended parents and potential
surrogates, availability of experienced lawyers,
public funding for surrogacy and availability of donor gametes in Aotearoa New
Zealand.
We look at options to address these issues, including whether there
should be a register of potential surrogates or whether some
form of
intermediary agency should be provided for.
CHAPTER 2
Surrogacy
in practice
IN THIS CHAPTER, WE CONSIDER:
research on the impact
of surrogacy on surrogate-born children, their families and
surrogates.
changing public attitudes about surrogacy; and
•
•
- New
Zealanders’ participation in surrogacy, both within Aotearoa New Zealand
and
offshore;
INTRODUCTION
- 2.1 Surrogacy
arrangements come in different forms. Traditional surrogacy is where the
surrogate’s ovum is used in conception.
This means the surrogate is
the child’s genetic and gestational mother. This is the oldest form of
surrogacy as it can
occur without the assistance of a fertility clinic.
Historically, conception would have occurred by natural intercourse between the
surrogate and an intended parent. However, public knowledge of
self-insemination techniques means that conception by natural
intercourse these
days would be “highly unusual”.1
- 2.2 Gestational
surrogacy is a more recent phenomenon, made possible with the development of in
vitro fertilisation (IVF) technology.
In a gestational surrogacy, the surrogate
does not use her own ovum in conception. Instead, an embryo is created using an
ovum and
sperm from the intended parents or donors. The embryo is then implanted
in the surrogate, and the surrogate gestates and gives birth
to the child. In a
gestational surrogacy, the child can be the genetic child of one or both
intended parents. Alternatively, if a
donor ovum and donor sperm are used, the
child may not have any genetic connection to either of the intended parents.
Because gestational
surrogacy involves the use of IVF technology, it can only
occur with the assistance of a fertility clinic.
1 Ruth Walker and Liezl van
Zyl “Surrogacy and the law: three perspectives” (2020) 10 NZFLJ 9 at
9.
NEW ZEALANDERS’ PARTICIPATION IN SURROGACY
- 2.3 The
first reported legal cases of traditional surrogacy in Aotearoa New Zealand were
in the 1990s,2 but surrogacy
has been practised privately throughout history.3
- 2.4 The first
gestational surrogacy arrangement in Aotearoa New Zealand was approved by the
National Ethics Committee on Assisted
Human Reproduction in 1997.4 At that time, there was no
specific legislation that addressed surrogacy. In 1996, MP Dianne Yates
introduced a Member’s Bill
that would regulate aspects of surrogacy, but
it took a further eight years before the Human Assisted Reproductive Technology
Act
2004 became law.5
- 2.5 Since those
first cases, the use of surrogacy has increased in Aotearoa New Zealand,
although it is difficult to know exactly
how common surrogacy is. No official
information is kept on the number of surrogacy arrangements entered or the
number of children
born as a result of a surrogacy
arrangement.
How
common is surrogacy today?
- 2.6 There are
several different sources of information relevant to the use of surrogacy in
Aotearoa New Zealand. None of these sources
provide a clear or complete picture,
given the limitations of the information explained below. The lack of accurate
information is
not a New Zealand-specific problem. Similar issues have been
identified in Australia and the United Kingdom, 6 and the Hague Conference has
observed that the number of international surrogacy arrangements entered
globally is “impossible
to determine”.7
- 2.7 A very broad
estimate, based on the information discussed below, is that up to 50 children
may be born as a result of a surrogacy
arrangement each year. This figure
includes both gestational and traditional surrogacy in Aotearoa New Zealand and
international
surrogacy where the intended parents live in Aotearoa New Zealand
and the surrogate lives in another country.
Approvals of gestational surrogacy arrangements
- 2.8 As
we explore in Chapter 5, gestational surrogacy arrangements must receive prior
approval from the Ethics Committee on Assisted
Reproductive Technology (ECART).
Since 2005, when ECART was established, the number of surrogacy
applications
2 Re P (adoption:
surrogacy) [1990] NZFLR 385 (DC); and Re G DC Invercargill Adopt
6/92, 3 February 1993.
- It
is often noted that the practice of surrogacy dates back to Biblical times, with
examples of traditional surrogacy arrangements
found in the Book of Genesis in
the stories of Sarah, Rachel and Leah: Gen 16:1–4; 30:1–10.
- See
National Ethics Committee on Assisted Human Reproduction Annual Report to the
Minister of Health for the year ending 31 December 2001 (June 2002) at 3.
The role of the National Ethics Committee on Assisted Human Reproduction was to
consider applications for ethical
approval of new treatments and research in
assisted reproductive technology.
- Human
Assisted Reproductive Technology Bill (1996) (195-3). A Government Bill was also
introduced in 1998: Assisted Human Reproduction
Bill (1998) (227-1). Both Bills
were referred to the Health Committee for consideration, and the Committee
recommended that the Human
Assisted Reproductive Technology Bill proceed with
modifications and the Government Bill lapse.
- Debra
Wilson “Avoiding the Public Policy and Human Rights Conflict in Regulating
Surrogacy: The Potential Role of Ethics Committees
in Determining Surrogacy
Applications” (2017) 7 UC Irvine L Rev 653 at 656–657.
- Permanent
Bureau of the Hague Conference on Private International Law A Preliminary
Report on the Issues Arising from International Surrogacy Arrangements
(Preliminary Document No 10, March 2012) at 8.
considered by ECART each year has steadily increased. In 2020, ECART considered
the highest-ever number of surrogacy applications
in a single year (37, compared
to just 14 in 2005). 8
However, the increase on 2019 (when 29 surrogacy applications were
considered) may be partly due to the Covid-19 pandemic deterring
intended
parents from pursuing international surrogacy. On average, ECART has considered
23 surrogacy applications each year since
2010.
- 2.9 These
figures are of limited value for two reasons. First, traditional surrogacy
arrangements do not need to be approved by ECART,
so the numbers of surrogacy
applications considered by ECART are not representative of the total number of
surrogacy arrangements
entered into in Aotearoa New Zealand. Second, not all
surrogacy arrangements that are approved by ECART may result in the birth
of a
child. The latest available data from fertility clinics identified that, in
2017, just 11 children were born as a result of
clinic-assisted surrogacy.9 Surrogacy arrangements
generally make up a very small proportion of assisted reproductive technology
treatment cycles (0.8 per cent
in 2017).10
Adoption data relating to domestic surrogacy
- 2.10 Another
source of information relates to adoption applications. As we explain in
Chapter 7, under the current law, the surrogate
and her partner (if she has
one) are the surrogate- born child’s legal parents at birth.11 The intended parents must
adopt if they want to be recognised as the child’s legal parents.12 As part of the adoption
process, an Oranga Tamariki social worker must prepare a report for the
court.13 Oranga
Tamariki’s records show that, in the year ended 30 June 2021, 22 reports
were written for adoption applications involving
domestic surrogacy.14
- 2.11 Prior to
July 2020, Oranga Tamariki did not distinguish the different categories of
social work reports submitted on adoption
applications to the Family Court.
However, a previous manual review of Oranga Tamariki’s records for the
year ended 30
June 2019 revealed that 37 reports were written for adoption
applications involving domestic
- These
figures are based on the minutes from the meetings of the Ethics Committee on
Assisted Reproductive Technology, which are available
on the Committee’s
website <ecart.health.govt.nz>. The minutes describe the applications
considered and the outcome of
the Committee’s
consideration.
9 Advisory
Committee on Assisted Reproductive Technology Assisted Reproductive
Technology in New Zealand 2017
(March 2021) at 4.
10 Advisory Committee on Assisted
Reproductive Technology Assisted Reproductive Technology in New Zealand
2017
(March 2021) at 4.
- Status
of Children Act 1969, ss 17–22. The surrogate’s partner will not be
a legal parent if there is evidence that establishes
that they did not consent
to the procedure: ss 18 and 27.
- Alternatives
to legal parenthood when the intended parents do not adopt the surrogate-born
child are discussed in Chapter
7.
13 Adoption Act 1955, s
10.
- Email
from Oranga Tamariki | Ministry of Children to Te Aka Matua o te Ture | Law
Commission regarding domestic and international
surrogacy data (16 July 2021).
We note, however, that the provision of a social worker report does not
necessarily equate to the
making of an adoption order.
surrogacy in that time.15 Of
these, 28 related to gestational surrogacy and nine related to traditional
surrogacy. A manual review conducted in 2018 identified
that the number of
adoption reports written each year in relation to domestic surrogacy ranged
between six and nine for the years
2013-2018.16
- 2.12 Adoption
data does not necessarily provide an accurate picture. In 2005, the Commission
observed that not all surrogacy arrangements
are formalised by adoption and
that:17
From the
Commission’s consultations, a common scenario seems to be that the
surrogate mother enters her own name and the intending
father’s name on
the birth certificate without any other steps being taken to transfer or
establish the intending parents’
legal status in relation to the child.
They simply take custody of the child and care for it on a day- to-day
basis.
- 2.13 It is
unclear whether this practice continues today. In 2017, Associate Professor
Debra Wilson observed that anecdotal evidence
suggests a “significant
disparity” between the number of surrogate-born children and the number
that have a legally recognised
relationship with the people they call their
parents.18 However, increasing
understanding of the current law (driven in part through wider media coverage
and the growth of online surrogacy
support forums) alongside increasing social
acceptance of surrogacy as a method of family formation may have reduced the
prevalence
of this practice.
Prevalence of international surrogacy
- 2.14 Oranga
Tamariki’s records show that, in the year ended 30 June 2021, 19 reports
were written for adoption applications
involving international surrogacy.19 Oranga Tamariki is aware of 82
international surrogacy arrangements over the past five calendar years
(2016-2020).20 Table 1 below
sets out the destination country in relation to these cases. It demonstrates
that most international surrogacies are
arranged in the United States (63 per
cent), with California being the most common destination, accounting for 35 per
cent of all
international surrogacy arrangements. Destinations outside the
United Sates tend to be in Asia or Eastern Europe.
- Letter
from Oranga Tamariki | Ministry for Children to Te Aka Matua o te Ture |
Law Commission regarding domestic and international
surrogacy data (24 March
2021).
- Oranga
Tamariki | Ministry for Children “Statistics on adoptions via surrogacy:
Data about domestic and international surrogacy
and adoption for 2013 to
2018” (14 November 2018) <www.orangatamariki.govt.nz>.
- Te
Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005) at [7.7] (citations omitted). Another possibility is that the
surrogate mother registers the names of the intended
parents on the
child’s birth certificate, having previously registered herself with her
doctor, midwife or hospital in the
name of an intended parent. The Commission
noted at [7.8] that there was anecdotal evidence that this had happened.
- Debra
Wilson “Avoiding the Public Policy and Human Rights Conflict in Regulating
Surrogacy: The Potential Role of Ethics Committees
in Determining Surrogacy
Applications” (2017) 7 UC Irvine L Rev 653 at 656.
- Email
from Oranga Tamariki | Ministry of Children to Te Aka Matua o te Ture | Law
Commission regarding domestic and international
surrogacy data (16 July
2021).
- Letter
from Oranga Tamariki | Ministry for Children to Te Aka Matua o te Ture |
Law Commission regarding domestic and international
surrogacy data (24 March
2021).
TABLE 1: KNOWN CASES OF INTERNATIONAL SURROGACY ARRANGEMENTS INVOLVING NEW
ZEALAND INTENDED PARENTS
|
Destination country
|
2016
|
2017
|
2018
|
2019
|
2020
|
USA
(USA arrangements entered into in California)
|
2
(2)
|
12
(7)
|
12
(7)
|
11
(5)
|
15
(8)
|
India
|
3
|
1
|
1
|
1
|
|
Mexico
|
1
|
|
1
|
|
1
|
Nepal
|
1
|
|
|
|
|
Cambodia
|
|
1
|
|
|
|
Kazakhstan
|
|
1
|
|
|
|
Philippines
|
|
1
|
|
|
|
Thailand
|
|
1
|
|
|
|
Australia
|
|
|
1
|
|
|
Canada
|
|
|
1
|
1
|
1
|
Georgia
|
|
|
1
|
3
|
1
|
Russia
|
|
|
1
|
1
|
|
Ukraine
|
|
|
1
|
1
|
|
Vietnam
|
|
|
|
1
|
|
China
|
|
|
|
|
1
|
South Africa
|
|
|
|
|
1
|
TOTAL
|
7
|
17
|
19
|
19
|
20
|
- 2.15 Most
international surrogacy arrangements over the past five years (68 out of 82)
involved the use of donated gametes, and half
(41) involved the use of an
anonymous donor.21
- 2.16 This data
may not capture all international surrogacy arrangements. When a child is born
outside Aotearoa New Zealand, the New
Zealand Government is reliant on the
information disclosed to it. Some intended parents may not disclose that their
child was
- Oranga
Tamariki | Ministry for Children notes that an “anonymous donor” may
provide a few points of information, such
as height, eye colour, ethnicity and
good health (with no photo); one photo and several sentences; a pseudonym for
the first name
with photos; or a profile of 30 pages but no means to contact the
donor.
born as a result of a surrogacy arrangement or realise that they need to adopt
the child to be recognised as the child’s legal
parents under New Zealand
law. In these cases, the New Zealand Government may never discover the nature of
the arrangement, especially
if the intended parents are recorded as the
child’s parents on the overseas birth certificate.22 Of course, single men and male
couples are likely to face greater scrutiny, as it will be apparent that neither
is the birth mother
(and therefore the legal parent, absent a valid adoption) of
the child.
Who is
utilising surrogacy?
- 2.17 Surrogacy
provides people with an opportunity to have a child when they are otherwise
unable to. Intended parents can loosely
be described as falling into one of two
groups:
(a) People who experience infertility. This group includes
heterosexual couples and single women who experience infertility, meaning
that a
woman is unable to carry a foetus to term. Within this group, there can be a
wide range of different experiences. Some women
may have had a diagnosis or
medical intervention (such as a hysterectomy) that means surrogacy is their only
option to have a child
genetically related to them. Other women may experience
years of unsuccessful fertility treatments and miscarriages and only turn
to
surrogacy as a last resort.
(b) People who lack the sex characteristics to become pregnant. This group
includes male couples, single men and some trans people.
In this group, there is
no history of failed fertility treatment. Rather, surrogacy provides the
opportunity to become parents to
a child that is the genetic child of one of the
intended parents. People in this group will usually need an ovum donor or will
seek
to have a child by traditional surrogacy.
- 2.18 In our
initial consultation, we also heard about an emerging third group comprising
people who possess the sex characteristics
to become pregnant but who do not see
pregnancy and childbirth as being consistent with their sense of identity. This
may include
some trans men who are physically able to become pregnant but who
may not wish to do so on the basis that this would conflict with
their gender
identity.
- 2.19 In many
surrogacy arrangements in Aotearoa New Zealand, the surrogate is a close friend
or family member of one or both intended
parents. However, increasingly,
intended parents are utilising social media to find a surrogate.23
What
is driving the increase in surrogacy?
- 2.20 The
increasing use of surrogacy in Aotearoa New Zealand is likely due to several
factors:
(a) Changing social attitudes to diverse families. The
increasing acceptance of diverse family forms, particularly male-couple and
single-parent families, is a significant driver
- Some
commentators note there is anecdotal evidence of this practice occurring in
situations where the surrogate-born child’s
birth certificate records the
intended parents as the child’s legal parents: Ruth Walker and Liezl van
Zyl “Surrogacy
and the law: three perspectives” (2020) 10 NZFLJ 9 at
9.
- Margaret
Casey “Creating families and establishing parentage when there is a
disconnect between Assisted Reproductive Technologies
and the Legal System: A
New Zealand perspective of a global problem” (2017) 9 NZFLJ 51 at
52.
in the increasing use of domestic surrogacy. In 2005, when the Commission
reviewed legal parenthood laws, the potential for surrogacy
to enable male
couples to build a family was not even raised as an issue in submissions or
consultation.24 In 2015, the
Family Court recognised for the first time that a male couple could legally
adopt their surrogate-born children.25 This confirmed the ability for
male couples to have a child by surrogacy and be legally recognised as that
child’s parents.
Since then, there has been a significant increase in male
couples using surrogacy.26
This is a trend that is also evident in the United Kingdom.27
(b) Declining rates of
adoption. Rates of domestic and intercountry adoption are declining28 as fewer children are put up
for adoption. This means that surrogacy is sometimes the only way for people to
have a child, even if
they would have preferred to adopt a child in need of
adoption instead.
(c) Growing rates of infertility. Women are waiting until later in life to
have children.29 As the age of women
giving birth increases, so do the rates of infertility and demand for fertility
treatment.30 Decreasing
fertility is a global trend and is likely to continue in future.31
(d) Advances in assisted reproductive technology. Ongoing improvements to
assisted reproductive technology mean higher success rates
for fertility
treatment.32 In the context of
surrogacy, this may mean that intended parents experiencing infertility have a
greater chance of creating an embryo
and having a child through gestational
surrogacy.
(e) Increasing focus on fertility preservation. Some fertility clinics we
spoke with mentioned the increase in women undergoing fertility
preservation
treatment such as ovum extraction and freezing. Women will undertake such
treatment if they want to safeguard their
ability to have children in the
future, for example, if they are about to undergo cancer treatment that could
result in infertility.
Trans people may also undergo fertility preservation
treatment prior to gender-affirming surgery. The increased demand for fertility
preservation is likely to result in an increased demand
24 Te Aka Matua o te Ture |
Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
[7.6].
25 Re Pierney [2015] NZFC 9404,
[2016] NZFLR 53 at [14]–[15].
26 Interview with Andrew Murray, Medical
Director, Fertility Associates (Kathryn Ryan, Nine to Noon, RNZ, 30 March
2021).
27 Law Commission of England and Wales
and Scottish Law Commission Building families through surrogacy: A new
law
– A joint consultation paper (CP244/DP167, 2019) at [3.20].
- Tāhū
o te Ture | Ministry of Justice observes that 125 adoptions were granted by the
New Zealand Family Court in 2020, compared
to nearly 4,000 children adopted each
year in the 1970s: Tāhū o te Ture | Ministry of Justice Adoption in
Aotearoa New Zealand – Discussion document (June 2021) at 4.
Intercountry adoption rates are also declining globally: Peter Selman Global
Statistics for Intercountry Adoption: Receiving States and States of origin
2004-2019 (Hague Conference on Private International Law, 2019).
- Te
Aka Matua o te Ture | Law Commission Relationships and Families in
Contemporary New Zealand | He Hononga Tangata, He Hononga Whānau I Aotearoa
o Nāianei (NZLC SP22, 2017) at 22.
- Growth
of the fertility services market in Aotearoa New Zealand is predicted for these
reasons: TMR Research “Australia &
New Zealand fertility services
market to make great impact in near future by 2026” (20 May
2020)
<www.testmeasurment.com.au>.
31 Zoë Corbyn “Interview
– Shanna Swan: ‘Most couples may have to use assisted reproduction
by 2045’”
The Guardian
(online ed, London, 28 March 2021).
- See,
for example, Paul R Brezina and others “Recent Advances in Assisted
Reproductive Technology” (2012) 1 Current Obstetrics
and Gynecology
Reports 166.
for surrogacy in future as people seek to start or build families using frozen
ova but are unable to carry a child themselves.
- 2.21 These
factors will continue to drive the use of surrogacy, both domestically and
internationally, as a way for people to build
their families in the future.
- 2.22 The
increasing use of international surrogacy by New Zealanders is also likely due
to the following additional factors, which
we explore throughout this Issues
Paper:
(a) Challenges in finding a surrogate in Aotearoa New
Zealand. Agencies cannot operate in Aotearoa New Zealand to provide a service
matching intended parents with surrogates. Some intended parents may not know
anyone who they could ask to act as a surrogate, especially
if they have only
recently settled in the country. Others may not want to ask their friends or
family. Restrictions on advertising
and payments to surrogates are likely to be
contributing to these challenges, and as we noted above, while people are
increasingly
seeking out a surrogate through social media, some may feel
uncomfortable publicising their private lives in such a way. We explore
these
issues in Chapter 10.
(b) Increased availability of donated gametes overseas. As we explain in
Chapter 10, there is a nationwide shortage of ovum and sperm
donors in Aotearoa
New Zealand. This is not necessarily the case in other countries, especially
where donors are compensated. As
noted above, most international surrogacy
arrangements (68 out of 82 arrangements over the past five years) involve the
use of donated
gametes.
(c) Availability of commercial surrogacy. Some intended parents prefer a
commercial model of surrogacy where they can recognise the
value of the
surrogate’s role through the payment of a fee or other compensation and
rely on the services of an intermediary
to manage the arrangement. Intended
parents may also feel more comfortable having a child through surrogacy in
jurisdictions where
commercial surrogacy is socially accepted, such as
California.
(d) Higher success rates and greater reproductive choices overseas. Some
intended parents may prefer to go to fertility clinics overseas
that report
higher success rates than New Zealand-based clinics or that offer practices that
are not available in Aotearoa New Zealand.
IVF practices such as multiple embryo
transfers33 and gender
selection34 are not available
in Aotearoa New Zealand but are available in some other countries. Another
emerging practice overseas is the use
of two or more surrogates
- Multiple
embryo transfers significantly increase the risks for the child and the pregnant
person, and standard practice in Aotearoa
New Zealand is that only one embryo is
transferred in each IVF cycle: Repromed “5 questions about IVF
answered” <repromed.co.nz>;
National Women’s Health “In-vitro fertilisation (IVF)”
<www.nationalwomenshealth.adhb.govt.nz>;
and Fertility Associates “IVF - In vitro
fertilisation”
<www.fertilityassociates.co.nz>.
Australian guidelines also require single embryo transfers in a surrogacy
arrangement in an effort to reduce the potential harm
for the surrogate:
National Health and Medical Research Council Ethical guidelines on the use of
assisted reproductive technology in clinical practice and research
(Australia, 2017) at [8.9.2].
34 Human Assisted Reproductive
Technology Act 2004, s 11.
at the same time.35 While this
is not technically prohibited in Aotearoa New Zealand, such an arrangement is
unlikely to satisfy the requirements for
ECART approval.36
(e) Increasing cultural
diversity in Aotearoa New Zealand. Cultural diversity driven by increasing
migration means that, increasingly,
New Zealanders may have links to two or more
countries. In the context of surrogacy, intended parents may choose to have a
child
in a country to which they have a connection. Different cultural
perspectives may also mean that some intended parents may prefer
a commercial
model of surrogacy available elsewhere over the non-commercial altruistic model
that is available in Aotearoa New Zealand.
NEW ZEALANDERS’ CHANGING ATTITUDES TO SURROGACY
- 2.23 Surrogacy
is increasingly becoming an accepted way to build a family in Aotearoa New
Zealand. Back in the 1980s, when treatment
using IVF technology first became
available, there was evidence of significant public concern regarding surrogacy.
In response
to a 1985 Government issues paper, just 38 per cent of
submissions commenting on surrogacy supported the practice, while 45 per
cent
opposed it.37
- 2.24 The
Surrogacy Survey reveals how public attitudes on surrogacy have changed over the
last three decades.38
- 2.25 Respondents
to the Surrogacy Survey were generally supportive of surrogacy, with 84 per
cent either approving (54 per cent)
or not objecting (30 per cent).39 Only five per cent objected to
surrogacy, while nine per cent of respondents needed to know more and two per
cent had no opinion or
preferred not to say. In response to another question, 88
per cent of respondents said that they supported surrogacy being legal
in
Aotearoa New Zealand, while only three per cent did not and nine per cent were
unsure or preferred not to say.40
- See,
for example, Emily Lefroy “Mum-of-21 reveals she had 20 babies by
surrogates within one year – and has 16 live- in
nannies” (4 June
2021) <www.essentialbaby.com.au>.
- For
example, the Ethics Committee on Assisted Reproductive Technology must be
satisfied that a surrogacy arrangement is “the
best or the only
opportunity for intended parents to have a child”: Advisory Committee on
Assisted Reproductive Technology
Guidelines for family gamete donation,
embryo donation, the use of donated eggs with donated sperm and clinic assisted
surrogacy (September 2020) at [A(4)].
- Law
Reform Division New Birth Technologies: A summary of submissions received on
the issues paper (Department of Justice, 1986) at 31–32.
- The
Surrogacy Survey was conducted by Te Whare Wānanga o Waitaha | University
of Canterbury as part of a three- year project,
Rethinking Surrogacy Laws, with
funding from the New Zealand Law Foundation. The Surrogacy Survey was a
paper-based survey that was sent to a representative sample of approximately
2,800 members of the public.
Participants were selected from the New Zealand
General Electoral Roll, and 557 responses were received. For more information
about
the survey methodology, see Debra Wilson Understanding the Experience
and Perceptions of Surrogacy Through Empirical Research: Public Perceptions
Survey (Te Whare Wānanga o Waitaha | University of Canterbury, May
2020) vol 3 at 2.
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Public Perceptions Survey (Te Whare Wānanga o
Waitaha | University of Canterbury, May 2020) vol 3 at 13.
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Public Perceptions Survey (Te Whare Wānanga o
Waitaha | University of Canterbury, May 2020) vol 3 at 64.
- 2.26 The
Surrogacy Survey also identified strong support for reform. When asked if the
Government should reconsider surrogacy laws,
68 per cent of respondents
answered yes, with most preferring a review in the next five years.41 Only a small proportion (eight
per cent) said no, and 25 per cent were unsure or preferred not to say.
- 2.27 We discuss
the results of the Surrogacy Survey in greater detail in later
chapters.
RESEARCH ON THE IMPACT OF SURROGACY
- 2.28 There
is a growing body of empirical research into the impact of surrogacy
arrangements on surrogate-born children, their families
and surrogates, mostly
from the United Kingdom and the United States, which demonstrates largely
positive outcomes for those involved.
42 Of particular note is the
University of Cambridge’s longitudinal study of assisted reproduction
families, which has been running
since 2000 (the Cambridge Study).43
Outcomes
for surrogate-born children and their families
- 2.29 The
Cambridge Study suggests that families with surrogate-born children are just as
likely to flourish as traditional families
and sometimes more so.44 That study found that:45
When the children were one,
these parents showed greater warmth and enjoyment in their babies than those who
had conceived naturally.
At age two, the surrogacy mothers took greater pleasure
in their toddlers, and felt less anger, guilt and disappointment in them.
When
the children were three, the surrogacy mothers were more affectionate, and
interacted more, with their toddlers.
By age seven, most of the surrogacy children knew how they had been born. The
parents still had good relationships with their children,
but they were no
longer doing better than the natural conception parents. Although some of the
surrogacy children showed an increase
in psychological problems at this age,
these difficulties had disappeared by the time we re-visited the families when
the children
were ten. Interestingly, the same pattern
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Public Perceptions Survey (Te Whare Wānanga o
Waitaha | University of Canterbury, May 2020) vol 3 at 55. All figures have been
rounded to the nearest percentage
point.
- For
a systematic review of research into the obstetric, medical and psychological
outcomes for surrogates, intended parents and children
born as a result of
surrogacy published before February 2015 and a discussion of methodological
limitations, see Viveca Söderström-Anttila
and others
“Surrogacy: outcomes for surrogate mothers, children and the resulting
families—a systematic review”
(2016) 22 Human Reproduction Update
260.
- This
study originally included 42 families created by surrogacy who were studied in
comparison with 51 families created by ovum donation
and 80 families with
naturally conceived children. Of the families created by surrogacy, 26 involved
traditional surrogacy and 16
involved gestational surrogacy. In 13 arrangements,
the surrogate was a friend or family member, while in 29 arrangements, the
surrogate
was previously unknown to the intended parents. By the time the
surrogate-born child was aged 14, 28 families remained in the study:
Susan
Golombok and others “Families Created Through Surrogacy Arrangements:
Parent-Child Relationships in the 1st Year of Life”
(2004) 40
Developmental Psychology 400 at 402; and Susan Golombok and others “A
Longitudinal Study of Families Formed Through
Reproductive Donation:
Parent-Adolescent Relationships and Adolescent Adjustment at Age 14”
(2017) 53 Developmental Psychology
1966 at 1968.
- Susan
Golombok “The psychological wellbeing of ART children: what have we
learned from 40 years of research” (2020) RBMO
743 at 743.
- Susan
Golombok “The psychological wellbeing of ART children: what have we
learned from 40 years of research” (2020) RBMO
743 at 744–745
(citations omitted).
has been found among internationally adopted children. A likely
explanation for this phenomenon, as first suggested with regard to
adoption, is
that these children are faced with issues relating to their identity at a
younger age than most other children.
At age 14, the adolescents were found to be flourishing. We asked them
directly how they felt about being born through surrogacy.
Only one expressed
some unhappiness, the majority were largely uninterested, and a few saw it as an
advantage.
- 2.30 These
findings are consistent with other studies in relation to the impact of
surrogacy on children in the United States. One
study of 40 male couples with
children through surrogacy found that children showed high levels of
psychological adjustment and positive
relationships with their parents.46 A more recent study of 68 male
couples with surrogate-born children found that “children of gay fathers
by surrogacy are functioning
as well or better than children in the general
population”.47
- 2.31 Another
finding from the Cambridge Study was that, at age 14, approximately half of the
adolescents who had no contact with their
surrogate were interested in her, with
the remainder being uninterested.48
Although the number of adolescents who had no contact with their surrogate
was small, researchers suggested that this indicates some
surrogate- born
children may have questions about their surrogate in the future or may express a
desire to meet her.49
Outcomes
for surrogates
- 2.32 Research
mostly from the United Kingdom and the United States has also investigated the
impact of surrogacy on women who act
as surrogates. This research suggests that
surrogacy is generally a positive experience for surrogates.50
- 2.33 In the
Cambridge Study, most surrogates did not experience major problems in their
relationship with the intended parents during
the surrogacy arrangement, and no
differences were observed in the quality of their relationship with the intended
parents between
surrogates who knew the intended parents beforehand and
surrogates who did
- Susan
Golombok and others “Parenting and the Adjustment of Children Born to Gay
Fathers Through Surrogacy” (2018) 89 Child
Dev 1223 at 1231.
- Robert-Jay
Green and others “Gay Fathers by Surrogacy: Prejudice, Parenting and
Well-Being of Female and Male Children”
(2019) 5 Psychology of Sexual
Orientation and Gender Diversity 269 at 269.
- At
age 14, of the eight adolescents who had no contact with their surrogate, five
were interested in them and three were not interested:
S Zadeh and others
“The perspectives of adolescents conceived using surrogacy, egg or sperm
donation” (2018) 33 Human
Reproduction 1099 at 1102.
- Vasanti
Jadva and others “Parents’ relationship with their surrogate in
cross-border and domestic surrogacy arrangements:
comparisons by sexual
orientation and location” (2019) 111 Fertility and Sterility 562 at
569.
- See,
for example, Arushi Gabrani Bakshi, Rita Bakshi and Sonia Miglani
“Psychological Aspects of Surrogacy: Her Womb My Baby!”
(2018) 8
IJSR 1207 at 1209; Viveca Söderström-Anttila and others
“Surrogacy: outcomes for surrogate mothers, children
and the resulting
families—a systematic review” (2016) 22 Human Reproduction Update
260 at 268; and Emily Koert and Judith
C Daniluk “Psychological and
Interpersonal Factors in Gestational Surrogacy” in E Scott Sills (ed)
Handbook of Gestational Surrogacy: International Clinical Practice and Policy
Issues (Cambridge University Press, Cambridge (UK), 2016) 70 at 71–72.
Small qualitative studies have also been undertaken in Aotearoa
New Zealand. See
Ruth Walker and Liezl van Zyl “Fear and Uncertainty: The Surrogacy
Triad’s Experience of Social Workers’
Role Ambiguity” (7
September 2020) British Journal of Social Work bcaa105 (advance
article).
not.51 All surrogates were
happy with the decision reached about when to hand over the baby, and none
experienced any doubts or difficulties
in relation to that decision.52 While some surrogates did
experience difficulties following the birth, these “were not severe,
tended to be short-lived, and
to dissipate with time”.53
- 2.34 Ten years
on, the surrogates in the Cambridge Study remained positive about the surrogacy
arrangement, with all reporting that
their expectations of their relationship
with the intended parents had been either met or exceeded and none expressing
regrets about
their involvement in surrogacy.54
- 2.35 The
Cambridge Study also compared the impact of surrogacy on surrogates in
traditional and gestational surrogacy arrangements.
Although it may be assumed
that traditional surrogates who are the child’s genetic mother would be
more likely to feel a special
bond towards the child, this was not the case.55 In fact, 10 years on,
gestational surrogates were more likely than traditional surrogates to feel a
special bond to the child. 56
The researchers suggested a possible explanation is that traditional
surrogates may be more likely to distance themselves from the
child emotionally
either because they do not wish to interfere with the child’s family or
because they want to create a clearer
boundary between their own children and
the surrogate-born child.57
Limitations
of the research
- 2.36 Research in
this area is limited in several key respects:
(a) First, research is
typically limited by relatively small sample sizes. This means that the research
cannot be said to capture
the full spectrum of different experiences. Surrogacy
arrangements can sometimes go wrong. What the research suggests, however, is
that, in many situations, surrogacy results in positive outcomes for all
involved.
(b) Second, there is limited information about the long-term impacts on
surrogate-born children. While the Cambridge Study has looked
at the impact of
surrogacy on
- Vasanti
Jadva and others “Surrogacy: the experiences of surrogate mothers”
(2003) 18 Human Reproduction 2196 at 2203.
- Vasanti
Jadva and others “Surrogacy: the experiences of surrogate mothers”
(2003) 18 Human Reproduction 2196 at 2200.
See also Ruth Walker and Liezl van
Zyl “Fear and Uncertainty: The Surrogacy Triad’s Experience of
Social Workers’
Role Ambiguity” (7 September 2020) British Journal
of Social Work bcaa105 (advance article) at 8.
- Vasanti
Jadva and others “Surrogacy: the experiences of surrogate mothers”
(2003) 18 Human Reproduction 2196 at 2203.
- V
Jadva, S Imrie and S Golombok “Surrogate mothers 10 years on: a
longitudinal study of psychological well-being and relationships
with the
parents and child” (2015) 30 Human Reproduction 373 at 373 and 377.
- Vasanti
Jadva and others “Surrogacy: the experiences of surrogate mothers”
(2003) 18 Human Reproduction 2196 at 2203.
- V
Jadva, S Imrie and S Golombok “Surrogate mothers 10 years on: a
longitudinal study of psychological well-being and relationships
with the
parents and child” (2015) 30 Human Reproduction 373 at 377.
- V
Jadva, S Imrie and S Golombok “Surrogate mothers 10 years on: a
longitudinal study of psychological well-being and relationships
with the
parents and child” (2015) 30 Human Reproduction 373 at
378.
adolescent children, it might be decades before the long-term implications of
surrogacy can be fairly considered.58
(c) Third, research
typically focuses on domestic surrogacy arrangements and, in the case of the
Cambridge Study, is limited to “altruistic”
surrogacy arrangements
that do not involve payment of a fee to the surrogate. The researchers involved
in the Cambridge Study have
noted that the children “spoke of the
surrogate’s altruistic motivations for helping their parents, which raises
questions
about how children will feel in situations where their surrogate
mothers [were] reimbursed financially”. 59 Indeed, some children who have written
about their experience being born of a commercial arrangement have questioned
whether this
is in the best interests of the child.60
- 2.37 Research on
international and commercial surrogacy is emerging.61 One study compared UK-based
intended parents’ relationships with their surrogate in domestic and
international surrogacy arrangements.
62 It found that intended parents
who had a domestic surrogacy arrangement and those who had an international
surrogacy arrangement in
the United States were more likely to report feeling
very involved during the pregnancy and were more likely to be very happy with
their level of involvement, compared to those with an arrangement in Asia.63 Intended parents who had a
surrogacy in Asia were also less likely to plan to have contact with the
surrogate after the birth.64
- 2.38 That study
also found that intended parents who went to the United States were more likely
to think it important that their surrogate
had particular traits and
characteristics, which is said to reflect “the marketization of U.S.
surrogacy and the greater choice
of available surrogates” when compared to
the UK, where there was a shortage of surrogates, and Asia, where many
surrogates
remain anonymous.65
- Debra
Wilson “Avoiding the Public Policy and Human Rights Conflict in Regulating
Surrogacy: The Potential Role of Ethics Committees
in Determining Surrogacy
Applications” (2017) 7 UC Irvine L Rev 653 at 658.
- V
Jadva and others “Surrogacy families 10 years on: relationship with the
surrogate, decisions over disclosure and children’s
understanding of their
surrogacy origins” (2012) 27 Human Reproduction 3008 at 3013.
- Jakiam83
“Welcome to my blog :)” (11 January 2013) <www.theothersideofsurrogacy.blogspot.com>;
Jakiam83 “Letter to Senator Pilcher-Cook” (26 January 2014) <www.theothersideofsurrogacy.blogspot.com>;
and Brian “The Son of a Surrogate” (9 August 2006) <www.sonofasurrogate.tripod.com>.
- See,
for example, Amrita Pande Wombs in Labor: Transnational Commercial Surrogacy
in India (Columbia University Press, New York, 2014), which investigates the
outcomes for surrogates in India.
- Vasanti
Jadva “Parents’ relationship with their surrogate in cross-border
and domestic susrrogacy arrangements: comparisons
by sexual orientation and
location” (2019) 111 Fertility and Sterility 562.
- Vasanti
Jadva “Parents’ relationship with their surrogate in cross-border
and domestic susrrogacy arrangements: comparisons
by sexual orientation and
location” (2019) 111 Fertility and Sterility 562 at 564–565.
- Vasanti
Jadva “Parents’ relationship with their surrogate in cross-border
and domestic susrrogacy arrangements: comparisons
by sexual orientation and
location” (2019) 111 Fertility and Sterility 562 at 565.
- Vasanti
Jadva “Parents’ relationship with their surrogate in cross-border
and domestic susrrogacy arrangements: comparisons
by sexual orientation and
location” (2019) 111 Fertility and Sterility 562 at
567.
CHAPTER 3
Guiding
principles for surrogacy law reform
IN THIS CHAPTER, WE CONSIDER:
Six guiding principles for surrogacy law reform:
- The
best interests of the surrogate-born child should be paramount.
- Surrogacy
law should respect the autonomy of consenting adults in their private
lives.
- Effective
regulatory safeguards must be in place.
- Parties
should have early clarity and certainty about their rights and obligations.
- Intended
parents should be supported to enter surrogacy arrangements in Aotearoa New
Zealand rather than offshore.
- Surrogacy
law should enable Māori to act in accordance with tikanga and promote
responsible kāwanatanga that facilitates
tino rangatiratanga.
INTRODUCTION
- 3.1 We
have developed six guiding principles for surrogacy law reform. These principles
guide our analysis of the issues and options
for reform in the following
chapters. We think that applying these principles will result in good surrogacy
law, namely, law that
protects and promotes the rights and interests of people
involved in surrogacy arrangements and meets the needs and expectations
of New
Zealanders.
- 3.2 These
guiding principles reflect a strong human rights focus, consistent with
international best-practice guidance. 1 Human rights underpin Aotearoa
New Zealand’s democratic society, and good law should align with these
rights.2
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at
[1.4].
2 See Legislation
Design and Advisory Committee Legislation Guidelines (March 2018).
- 3.3 Our guiding
principles address the different rights and interests that need to be considered
in surrogacy law reform. Surrogacy
engages fundamental human rights for three
key groups – surrogate-born children, women who act as surrogates and
intended parents.
As Margaret Casey QC has observed, “the rights of all
the humans involved in the creation process are not necessarily
aligned”.3 In some
cases, the guiding principles will conflict with each other. Our task in the
chapters that follow is to carefully balance
competing rights and interests in a
way we consider will make the best law.
PRINCIPLE 1: THE BEST INTERESTS OF THE SURROGATE-BORN CHILD
SHOULD BE PARAMOUNT
- 3.4 Because
surrogacy arrangements are concerned with the creation of a child, that
child’s best interests should be paramount
in surrogacy law. This reflects
the rights of children affirmed in the United Nations Convention on the Rights
of the Child (UNCROC),
which states that:4
In all actions concerning
children, whether undertaken by public or private social welfare institutions,
courts of law, administrative
authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
- 3.5 Over the
past decade, significant international attention has been given to the question
of surrogacy from a child’s rights
perspective. In 2019, the United
Nations (UN) Special Rapporteur provided a thematic review of surrogacy to the
UN General Assembly.5 In
2021, the International Social Service published a set of principles to guide
the regulation of surrogacy within a children’s
rights framework (Verona
Principles), with the support of the UN Committee on the Rights of the Child.6
- 3.6 Both the UN
Special Rapporteur and the Verona Principles emphasise the significance of
child’s best interests in the regulation
of surrogacy arrangements. 7 The UN Special Rapporteur
recommended that “the core principle of the best interests of the
child” should be “the
paramount consideration” in all
surrogacy law, policy and practice
- Margaret
Casey “Creating families and establishing parentage when there is a
disconnect between Assisted Reproductive Technologies
and the Legal System: A
New Zealand perspective of a global problem” (2017) 9 NZFLJ 51 at 54. See
also Natalie Baird and Rhonda Powell Surrogacy and Human Rights in New
Zealand: Rethinking Surrogacy Laws Te Kohuki Ture Kopu Whangai (Te Kura Ture
| School of Law, Te Whare Wānanga o Waitaha | University of Canterbury,
2020) at 3–4.
- United
Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), art 3(1).
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019). See also Maud de
Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/HRC/37/60 (15 January 2018).
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021). Members of the United
Nations Committee on the Rights of the Child support the Verona Principles as
“an important
contribution to developing normative guidance for the
protection of the rights of children born through surrogacy” at 3.
- See
also Claire Achmad “Children’s Rights in International Commercial
Surrogacy: Exploring the challenges from a child
rights, public international
human rights law perspective” (PhD thesis, Leiden University,
2018).
concerning surrogate-born children.8 Similarly, the Verona
Principles require that the best interests of the child “shall be the
paramount consideration in all decisions
concerning legal parenthood and
parental responsibility related to a child born through surrogacy”.9
- 3.7 Other
jurisdictions have embraced the best interests of the child principle in
surrogacy law reform.10 In
Australia, for example, state legislation often adopts the principle that the
well-being and best interests of the surrogate-born
child are paramount.11
- 3.8 The
paramountcy of children’s best interests is also reflected in other
child-focused legislation in Aotearoa New Zealand.
The Care of Children Act 2004
and the Oranga Tamariki Act 1989 both make the best interests of a child the
“first and paramount
consideration”.12 The Adoption Act 1955
similarly places the child’s interests at the centre of decision making,
requiring the court to be satisfied
that the welfare and interests of the child
will be promoted by the adoption and that due consideration be given to the
child’s
wishes, having regard to the age and understanding of the child.13
- 3.9 We note that
this approach departs from the principles of the Human Assisted Reproductive
Technology Act 2004 (HART Act), which
state that the health and well-
being of children is “an important consideration” in all decisions
about assisted
reproductive procedures.14 In 2005, the Commission
observed that this was appropriate “as other factors may need to be
taken into account where parenthood
laws are concerned”.15 However, since that time and
in the specific context of surrogacy, a clear international consensus has
emerged that confirms the paramountcy
of the child’s best interests.
- 3.10 This
principle guides our consideration of how surrogacy should be regulated in
Aotearoa New Zealand as well as how the law should
provide for international
surrogacy. This principle should also guide decisions made within the regulatory
framework on a case- by-case
basis.
What
does the child’s best interests mean in the context of surrogacy law
reform?
- 3.11 Giving the
child’s best interests paramountcy in the surrogacy context means not only
providing for their immediate safety
and welfare but also considering the
long-term
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at [100(a)].
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [6.1].
- See,
for example, Conor O’Mahony A Review of Children’s Rights and
Best Interests in the Context of Donor-Assisted Human Reproduction and Surrogacy
in Irish
Law (Department of Children, Equality, Disability, Integration and
Youth, Ireland, December 2020) at 8–11; and South Australian
Law Reform
Institute Surrogacy: A Legislative Framework – A Review of Part 2B of
the Family Relationships Act 1975 (SA) (Report 12, 2018) at
[9.3.1]–[9.3.5].
- Surrogacy
Act 2019 (SA), s 6(1); Surrogacy Act 2012 (Tas), s 3(1); Surrogacy Act 2010
(Qld), s 6(1); Surrogacy Act 2010 (NSW), s 3; and Assisted Reproductive
Treatment Act 2008 (Vic), s
5(a).
12 Care of Children Act
2004, s 4; and Oranga Tamariki Act 1989, s 4A.
13 Adoption Act 1955, s 11(b).
14 Human Assisted Reproductive
Technology Act 2004, s 4(a).
- Te
Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005) at [1.19]. The example given was where the interests of justice
require that a presumed father who has reason to
believe he is not the father
should be able to have the matter resolved, regardless of the fact that the
child may lose his or her
financial support.
implications of surrogacy for the child.16 It also requires providing
for the child’s other rights recognised under UNCROC.17
- 3.12 Rights that
are particularly relevant in the surrogacy context include rights to identity,
nationality, family life, health,
freedom from discrimination and protection
from abuse, exploitation and sale.
Rights to identity
- 3.13 Children
have a range of rights that relate to establishing identity, including the
right to birth registration, the right
to a name and, as far as possible, the
right to know and be cared for by their parents.18
- 3.14 Another
important element of identity rights is the right of access to a child’s
origins.19 The importance of this right
is evident from the past practices in Aotearoa New Zealand of closed adoption
and anonymous donor conception.
Historical assumptions that underpinned the
closed adoption regime have now been recognised as flawed, with some adoptees
reporting
problems in establishing a sense of identity.20 As Te Kōti Pira | The
Court of Appeal has observed, “[a]doption research has indicated that many
adopted persons have a
‘deep’ psychological need to know the true
identity of those who brought them into this world”.21 This can be particularly
challenging for Māori adoptees, who may grow up with no connection to their
whakapapa (genealogy) and
struggle to connect with their Māori identity.22
- 3.15 In 2005,
the Commission observed similar concerns arising in relation to the use of
anonymous donors:23
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [6.1].
- Committee
on the Rights of the Child General Comment No. 14 (2013) on the right of the
child to have his or her best interests taken as a primary consideration (art.
3,
para. 1) UN Doc CRC/C/GC/14 (29 May 2013) at [4]; and Maud de
Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at [19].
- United
Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), art 7(1). See also art
8(1). The right of a child to
preserve their identity must also be taken into
consideration in the assessment of the child’s best interests: Committee
on
the Rights of the Child General Comment No. 14 (2013) on the right of the
child to have his or her best interests taken as a primary consideration (art.
3,
para. 1) UN Doc CRC/C/GC/14 (29 May 2013) at [55].
- The
right of access to origins is seen as a constitutive element of the right to
identity: Maud de Boer-Buquicchio Report of the Special Rapporteur on the
sale and sexual exploitation of children, including prostitution, child
pornography and other
child sexual abuse material UN Doc A/74/162 (15 July
2019) at [34].
20 Te Aka Matua
o te Ture | Law Commission Adoption and Its Alternatives: A Different
Approach and a New Framework
(NZLC R65, 2000) at [75]–[76].
21 Hemmes v Young [2004] NZCA
289, [2005] 2 NZLR 755 at [117]. See also Adoption Action Inc v
Attorney-General
[2016] NZHRRT 9, [2016] NZFLR 113 at [242]–[244].
- Alice
Webb-Liddall “Finding whakapapa: The generational trauma of closed
Māori adoptions” The Spinoff (New Zealand, 18 March
2021).
- Te
Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005) at [1.22] and [10.25]– [10.34]. See also Sonia Allen and others
“Donor Conception and Surrogacy”
(presentation to United Nations
Conference on the 30th Anniversary of the Convention on the Rights of the Child,
Geneva, 19 November
2019); and Rebecca Hamilton and others “Gaping holes
in law covering info for donor-conceived people” Stuff (online ed,
New Zealand, 25 May 2021).
Already, a generation of children conceived by donor gametes
have, upon reaching adulthood, articulated the same strong needs to know
their
genetic parentage as adult adoptees have done.
- 3.16 In the
surrogacy context, a child’s right of access to origins may be undermined
if they are not given information about
their genetic and gestational origins
appropriate to their age and understanding.
- 3.17 In Aotearoa
New Zealand, there appears to be a general acceptance of the importance of
making information available to surrogate-born
children about their genetic and
gestational origins.24 As we
discuss in Chapter 8, anonymous gamete donations through fertility clinics are
no longer permitted in Aotearoa New Zealand,25 and a new health and
disability services standard requires fertility service providers to encourage
and support people to inform surrogate-born
children of their genetic and
gestational origins.26
- 3.18 New
Zealanders’ changing attitudes are likely due in part to the influence of
tikanga Māori (customary practices)
and the significance of whakapapa in
New Zealand society, particularly for Māori.27 However, not all cultures
assign the same importance to children’s identity rights, and in many
countries, the use of anonymously
donated gametes remains the cultural norm.
Aotearoa New Zealand is a culturally diverse country, which means that some New
Zealanders
may have different cultural attitudes to sharing information with a
surrogate-born child about their genetic and gestational origins.
- 3.19 The ongoing
use of anonymous donors in other countries also has implications for New
Zealanders who pursue international surrogacy
arrangements. As we note in
Chapter 2, half of international surrogacy arrangements entered into by New
Zealanders in the past five
years have involved the use of anonymously donated
gametes. This means that these children may be unable to access information
about
their genetic origins on the same basis as New Zealand-born children.
Margaret Casey QC notes that:28
In my view this is the most
significant disconnect for New Zealanders because of the development of two
groups of donor born children;
those who can access information about their
genetic history and access to that knowledge is mandated by our society and
those who
cannot access this information because donor anonymity and
availability has been prioritised over that child’s right to a complete
picture of their genetic makeup.
- In
the Surrogacy Survey, 83 per cent of respondents agreed that surrogate-born
children should have access to information about their
origins: Debra Wilson
Understanding the Experience and Perceptions of Surrogacy Through Empirical
Research: Public Perceptions Survey (Te Whare Wānanga o Waitaha |
University of Canterbury, May 2020) vol 3 at 157 (rounded to the nearest
percentage point).
- Human
Assisted Reproductive Technology Act 2004, s 47 requires providers to obtain
identifying information about the donor.
- Ngā
Paerewa Health and Disability Services Standard NZS 8134:2021 at [1.10.1]. This
will come into force in February 2022 under
the Health and Disability Services
(Safety) Standards Notice 2021.
- As
noted in Ken Daniels “The Policy and Practice of Surrogacy in New
Zealand” in Rachel Cook, Shelley Day Sclater
and Felicity Kaganas
(eds) Surrogate Motherhood: International Perspectives (Hart Publishing,
Portland (OR), 2003) 55 at 65.
- Margaret
Casey “Creating families and establishing parentage when there is a
disconnect between Assisted Reproductive Technologies
and the Legal System: A
New Zealand perspective of a global problem” (2017) 9 NZFLJ 51 at 54.
This problem is also identified at an international level, see: Maud de
Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including child prostitution, child pornography
and
other child sexual abuse material UN Doc A/74/162 (15 July 2019) at
[38].
Rights to nationality
- 3.20 Under
UNCROC, children have the right to acquire a nationality, and states must ensure
these rights are respected, especially
where the child would otherwise be
stateless.29
- 3.21 Rights to
nationality are important in international surrogacy. A child in an
international surrogacy arrangement may end up
stateless if the country of the
child’s birth and the intended parents’ country (or countries) of
citizenship refuse
recognition.30
As we explore in Chapter 9, if a child is stateless, this may affect their
ability to travel to the intended parents’ country.
It may also affect the
ability of the intended parents to care for the child if they are unable to
travel to or remain in the child’s
country of birth.
- 3.22 Rights to
nationality are also engaged when intended parents have dual citizenship.
Surrogate-born children should be able to
enjoy the same rights to nationality
as other children, regardless of their method of conception.
Rights to family life
- 3.23 UNCROC
places strong emphasis on maintaining family life and preventing separation from
parents unless it is in the best interests
of the child.31 In the surrogacy context, the
UN Special Rapporteur has recognised that there is a “very real
risk” of separation where
international surrogacy arrangements are
concluded by intended parents from countries where surrogacy is prohibited.32 It considers it is
“vital to maintain a very high threshold for the justification of a
separation in accordance with international
norms and standards”.33
- 3.24 Even in
domestic surrogacy arrangements, the relationship between the surrogate-born
child and the intended parents is precarious,
as the intended parents have no
legal parental rights or responsibilities in relation to that child until such
time as their
adoption is finalised. This may impact on the child’s
rights to family life. We discuss legal parenthood in Chapter
7.
- United
Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), arts 7 and 8.
- Claire
Achmad “Contextualising a 21st century challenge: Part Two – Public
international law human rights issues: Why
are the rights and interests of women
and children at stake in international commercial surrogacy arrangements?”
(2012) 7 NZFLJ 206 at 208.
- United
Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), preamble and arts 5, 7,
9, 10, 16 and 18.
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at [43]. See, for
example, the case of Paradiso and Campanelli v Italy ECHR 25358/12, 24
January 2017 (Grand Chamber).
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at
[43].
Right to health
- 3.25 All
children have the right to the enjoyment of the highest attainable standard of
health, and states must work to ensure that
no child is deprived of their right
to access health- care services.34
- 3.26 In the
surrogacy context, the ability of the child to preserve their identity has
implications for their right to health because
if they are conceived using
anonymous gametes, they may not have access to important genetic health
information. In addition, a child
who is stateless may encounter barriers when
attempting to access health-care, and if a child has no legal relationship with
the
intended parents, the intended parents may be unable to consent to medical
treatment on the child’s behalf, even if the child
is in their
care.
Rights to freedom from discrimination
- 3.27 Children
are entitled to the rights set out in UNCROC without discrimination on specified
grounds, including “birth or
other status”.35 The UN Special Rapporteur
explains that:36
This
overarching principle of non-discrimination signifies that none of the rights of
the child should be impacted by the method of
his or her birth, including
through a surrogacy arrangement. Specifically, the rights of the child to
identity, access to origins
and to a family environment should not be adversely
affected by surrogacy.
Rights to protection from abuse, exploitation and sale
- 3.28 Aotearoa
New Zealand also has international human rights obligations to take appropriate
measures to protect children from abuse
and exploitation.37
- 3.29 In the
context of surrogacy, this is often interpreted as imposing an obligation on
states to undertake some form of assessment
of intended parents before their
legal parent status is recognised.38
- 3.30 This can be
a particular concern in international surrogacy, where a surrogacy arrangement
may take place in a country without
the same protective laws that exist in
Aotearoa New Zealand. In international human rights law, there is a concern that
some
- United
Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), art 24.
- United
Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), art 2.
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at [23].
- Pursuant
to United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for
signature 20 November 1989, entered into force 2 September 1990), arts 19 and
35. See also arts 32–36. Aotearoa
New Zealand is also a signatory to the
Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child
prostitution and child pornography 2171 UNTS 227 (opened for
signature 25 May 2000, entered into force 1 January 2002).
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [5.5] and [8.2]; and
Natalie Baird and Rhonda Powell Surrogacy and Human Rights in New Zealand:
Rethinking Surrogacy Laws Te Kohuki Ture Kopu Whangai (Te Kura Ture | School
of Law, Te Whare Wānanga o Waitaha | University of Canterbury, May 2020)
at 23. See also Permanent Bureau
of the Hague Conference on Private
International Law A Study of Legal Parentage and the Issues arising from
International Surrogacy Arrangements
(Preliminary Document No
3C, March 2014) at [206]–[207], observing that there are a minority of
extremely troubling cases that
have resulted from a system that has no enforced
minimum checks concerning intended parents.
surrogacy arrangements may constitute the sale of children if the arrangement is
characterised by a contract under which a surrogate
receives a fee for gestating
and transferring a child to the intended parents after birth.39 The UN Special Rapporteur and
the Verona Principles highlight the need for appropriate safeguards and
oversight mechanisms in order
to guard against this risk.40
PRINCIPLE 2: SURROGACY LAW SHOULD RESPECT THE AUTONOMY OF
CONSENTING ADULTS IN THEIR PRIVATE LIVES
- 3.31 Subject
to the paramountcy of the surrogate-born child’s best interests, we think
the law should respect the autonomy of
consenting adults (including both
surrogates and intended parents) in their private lives. Similar guiding
principles are reflected
in legislation in some Australian states 41 and in reviews of surrogacy
law by overseas law reform bodies.42
- 3.32 Personal
autonomy is a fundamental human rights value, grounded in the respect for the
inherent dignity of the human person.
43 It is expressed in a range of
different ways, including through recognition of a person’s bodily
integrity and reproductive
freedom,44
- Committee
on the Rights of the Child Concluding observations on the combined third and
fourth reports submitted by the United States of America under article 12 (1) of
the Optional Protocol to the Convention on the Rights of the Child on the sale
of children, child prostitution and child pornography
UN Doc
CRC/C/OPSC/USA/CO/3–4 (12 July 2017) at [24]; Maud de Boer-Buquicchio
Report of the Special Rapporteur on the sale and sexual exploitation of
children, including prostitution, child pornography and other
child sexual abuse
material UN Doc A/HRC/37/60 (15 January 2018) at [41]–[42]; and
International Social Service Principles for the protection of the rights of
the child born through surrogacy (Verona principles) (Geneva, 2021) at
[14.1]–[14.6].
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at [74] and [79];
and International Social Service Principles for the protection of the rights
of the child born through surrogacy (Verona principles) (Geneva, 2021) at
[1.3] and
[14.7]–[14.9].
41 Surrogacy
Act 2012 (Tas), s 3(d); and Surrogacy Act 2010 (Qld), s 6(2)(d).
- See,
for example, Law Commission of England and Wales and Scottish Law Commission
Building families through surrogacy: a new law – A joint consultation
paper (CP244/DP167, 2019) at [2.65]–[2.71] and [8.96]–[8.100];
Michael Gorton Helping Victorians create families with assisted reproductive
treatment: Final Report of the Independent Review of Assisted Reproductive
Treatment (Victorian Department of Health and Human Services, Melbourne, May
2019), R63; South Australian Law Reform Institute Surrogacy: A Legislative
Framework – A Review of Part 2B of the
Family
Relationships Act 1975 (SA) (Report 12, 2018),
R11(5); Standing Committee of Attorneys-General, Australian Health
Ministers’ Conference and Community and
Disability Services
Ministers’ Conference Joint Working Group A proposal for a National
Model to Harmonise Regulation of Surrogacy (NSW, Australia, January 2009) at
2; and Investigation into Altruistic Surrogacy Committee Report
(Queensland Parliament, Brisbane, October 2008), R9.
- For
a discussion, see Kate Galloway “Theoretical Approaches to Human Dignity,
Human Rights and Surrogacy” in Paula Gerber
and Katie O’Byrne (eds)
Surrogacy, Law and Human Rights (Ashgate, United Kingdom, 2015) 13 at
24–28.
- These
rights and freedoms are contained within the general right to health: Committee
on Economic, Social and Cultural Rights General Comment No 14: The Right to
the Highest Attainable Standard of Health (Art. 12) UN Doc E/C.12/2000/4 (11
August 2000) at [8]. The right to health is affirmed in a range of international
instruments including the
Universal Declaration of Human Rights GA Res
217A (1948), art 25; the International Covenant on Economic Social and Cultural
Rights 993 UNTS 3 (opened for signature 16 December 1966, entered into force 3
January 1976), art 12; and the Convention on the Elimination of All
Forms of
Discrimination against Women New York 1249 UNTS 1 (opened for signature 18
December 1979, entered into force 3 September 1981), arts 12 and
16(e).
rights to found a family45
and rights to respect for privacy and family.46 The European Court of Human
Rights has interpreted the right to respect for privacy and family as including
“the right of a
couple to conceive a child and to make use of medically
assisted procreation for that purpose”.47 These rights should be
enjoyed without discrimination on grounds such as sex, gender, marital status or
sexual orientation.48
- 3.33 This
principle does not suggest that adults have an unqualified right to have a child
by surrogacy, as that would undermine the
recognition of children as individual
rights holders. 49 Rather,
adults’ freedom to have a child by surrogacy should be respected provided
the rights of others, in particular the rights
of the child and the surrogate,
are adequately protected.50
- 3.34 This
guiding principle means respecting a surrogate’s decision to enter a
surrogacy arrangement and her autonomy to make
decisions about how to manage her
pregnancy and the birth.51 It
also means respecting the intended parents’ rights to decide to build
their family through surrogacy and the parties’
intentions in relation to
legal parenthood, subject to appropriate safeguards. Decisions made by donors to
donate gametes should
also be respected. Finally, this principle also means
respecting the autonomy of surrogates’ partners, who are currently
co-opted
into a legal parental role simply by fact of their relationship with
the surrogate.
PRINCIPLE 3: EFFECTIVE REGULATORY SAFEGUARDS MUST BE IN
PLACE
- 3.35 Available
research suggests that most surrogacy arrangements will be positive experiences
for all the parties involved (see Chapter
2). However, it is important to
acknowledge that parties in a surrogacy arrangement are in an inherently
vulnerable
- International
Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16
December 1966, entered into force 23 March 1976), art 23(2).
- International
Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16
December 1966, entered into force 23 March 1976), art 17(1).
- SH
and others v Austria [2011] 5 ECHR 295 (Grand Chamber) at [82], dealing with
article 8 of the European Convention on Human Rights, which is equivalent to
article 17 of the International
Covenant on Civil and Political Rights.
- Non-discrimination
principles are found in a range of international conventions and are enshrined
in domestic law under the New Zealand
Bill of Rights Act 1990, ss 5 and 19; and
the Human Rights Act 1993, s 21. If infertility is considered a disability,
intended parents
who experience infertility would also have rights to
non-discrimination in the enjoyment of their rights under the Convention on
the
Rights of Persons with Disabilities 2515 UNTS 3 (opened for signature 31
December 2006, entered into force 3 May 2008), arts
22–23 and 25.
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [1.8]; and Maud de
Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at [76].
- Australian
Human Rights Commission Submission to the House of Representatives Standing
Committee on Social Policy and Legal Affairs: Inquiry into the Regulatory and
Legislative Aspects of Surrogacy Arrangements (17 February 2016) at
[24].
- Kate
Galloway “Theoretical Approaches to Human Dignity, Human Rights and
Surrogacy” in Paula Gerber and Katie O’Byrne
(eds) Surrogacy, Law
and Human Rights (Ashgate, United Kingdom, 2015) 13 at
28.
position. Effective regulatory safeguards are necessary to protect all parties
from the potential for exploitation.52
- 3.36 Women who
act as surrogates are often considered to be most at risk, especially in
international commercial surrogacy arrangements.
53 In some countries, these
arrangements can be characterised by an imbalance of power between the parties,
and a woman may be induced,
through the promise of payment, to act as a
surrogate under an arrangement without sufficient protections for her or for the
surrogate-born
child. In countries with less-stringent standards of fertility
treatment and healthcare, women who act as surrogates may also face
greater
health risks. For example, in Chapter 2, we note that multiple embryo transfers
are not routinely available in Aotearoa New
Zealand, given they pose
significantly greater risk to the surrogate, but this procedure may be available
in other countries.
- 3.37 Concerns
regarding the potential for exploitation are particularly prevalent when for-
profit intermediaries are involved and
when “economically poor women are
acting as surrogates in the developing world to meet the demand of developed
world customers”.
54
In some countries, contact between the intended parents and the surrogate
may be discouraged or communication may be difficult due
to language barriers.
Even in more stable legal systems such as the United States, there remains a
concern that surrogates in commercial
surrogacy arrangements may still be unduly
influenced by social and economic pressures, may be unable to give free and
informed consent
or may be exploited through racial, cultural, structural and
other inequities.55
- 3.38 The
potential for exploitation of surrogates also exists in non-commercial surrogacy
arrangements. As the Commission identified
in 2005, even if commercial
inducements are prohibited, there may be other pressures, including within a
family, that make it difficult
for a woman to resist a request to carry a child
for others.56 Surrogates may
also come under external pressure to agree to tests or procedures they would
otherwise choose
- Similar
principles have guided surrogacy law reform in South Australia: South Australian
Law Reform Institute Surrogacy: A Legislative Framework – A Review of
Part 2B of the Family Relationships Act 1975 (SA) (Report 12, 2018) at
[9.5.1]– [9.5.12]. Other Australian law reform bodies have focused on
protecting the surrogate from exploitation:
Michael Gorton Helping Victorians
create families with assisted reproductive treatment: Final Report of the
Independent Review of Assisted Reproductive
Treatment (Victoria Department
of Health and Human Services, Melbourne, May 2019) at 119;
and House
of Representatives Standing Committee on Social Policy and Legal Affairs
Surrogacy Matters: Inquiry into the regulatory and legislative aspects of
international and domestic surrogacy arrangements (Parliament of the
Commonwealth of Australia, April 2016), R2.
- For
a discussion, see Claire Achmad “Contextualising a 21st century challenge:
Part Two – Public international law human
rights issues: Why are the
rights and interests of women and children at stake in international commercial
surrogacy arrangements?”
(2012) 7 NZFLJ 206 at 211. See also Permanent
Bureau of the Hague Conference on Private International Law A Study of Legal
Parentage and the Issues arising from International Surrogacy Arrangements
(Preliminary Document No 3C, March 2014) at [192].
- Claire
Achmad “Contextualising a 21st century challenge: Part Two – Public
international law human rights issues: Why
are the rights and interests of women
and children at stake in international commercial surrogacy arrangements?”
(2012) 7 NZFLJ 206 at 211. See, for example, Kishwar Desai “India’s
surrogate mothers are risking their lives. They urgently need protection”
The Guardian (online ed, London, 5 June 2012).
- Sonia
Allan “The Surrogate in Commercial Surrogacy: Legal and Ethical
Considerations” in Paula Gerber and Katie O’Byrne
(eds)
Surrogacy, Law and Human Rights (Ashgate, United Kingdom, 2015) 113 at
124–128. See also Kate Galloway “Theoretical Approaches to Human
Dignity, Human
Rights and Surrogacy” in Paula Gerber and Katie
O’Byrne (eds) Surrogacy, Law and Human Rights (Ashgate, United
Kingdom, 2015) 13 at
18–20.
56 Te Aka Matua o
te Ture | Law Commission New Issues in Legal Parenthood (NZLC R88, 2005)
at [7.64].
not to do.57 One review in
Australia reported that some surrogates felt that they had to comply with the
demands for more-invasive forms of treatment
because the intended parents were
paying for the medical expenses involved.58 Some commentators argue that
altruistic surrogacy can be exploitative if it results in women being
financially disadvantaged by agreeing
to act as a surrogate.59
- 3.39 Intended
parents are also at risk of exploitation. Often, intended parents turn to
surrogacy as their only opportunity to have
a child or as a last resort after a
long period of costly and unsuccessful fertility treatment. This leaves them
vulnerable, as the
South Australian Law Reform Institute has observed:60
The urge and desperation of
childless couples and individuals to become parents ... is profound, as is their
willingness to pay large
amounts of money (even in a non-commercial system) in
order to become a parent.
- 3.40 In any
surrogacy arrangement, there is the potential for exploitation on both sides,
including by the surrogate. For example,
a surrogate might cut contact with the
intended parents during the pregnancy or make increasingly unreasonable demands
on them. Intended
parents may feel powerless to do anything but accede to these
demands. In one Australian review, an intended parent explained that
“when
someone is carrying your baby, you will do anything for them” and there is
“so much potential for parents
... to be taken advantage of”.61
- 3.41 Intended
parents may be more vulnerable in international commercial surrogacy
arrangements, especially if surrogacy intermediaries
and fertility clinics are
not adequately regulated. They may be in an unfamiliar country and may find it
difficult to access accurate
information and independent advice.
Internationally, there have been reports of commercial surrogacy agencies
defrauding intended
parents62
and of clinic errors and practices where intended parents arrange for the
child to be conceived using their gametes only to discover,
after the
child’s birth, that they have no genetic link to the child.63
- See,
for example, Tom Blackwell “Canadian surrogate eliminated baby from
triplet pregnancy at urging of overseas couple”
National Post
(online ed, Canada, 9 September 2015).
- Michael
Gorton Helping Victorians create families with assisted reproductive
treatment: Final Report of the Independent Review of Assisted Reproductive
Treatment (Victoria Department of Health and Human Services, Melbourne, May
2019) at 135.
- Rhonda
Powell “Exploitation of Surrogate Mothers in New Zealand” in Annick
Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New
Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 57 at
58; and Ruth Walker and Liezl van Zyl Towards a
Professional Model of Surrogate Motherhood (Palgrave MacMillan, London,
2017) at 44.
- South
Australian Law Reform Institute Surrogacy: A Legislative Framework – A
Review of Part 2B of the Family Relationships Act 1975 (SA) (Report 12,
2018) at [9.5.1] (citations omitted).
- South
Australian Law Reform Institute Surrogacy: A Legislative Framework – A
Review of Part 2B of the Family Relationships Act 1975 (SA) (Report 12,
2018) at [9.5.10].
- See,
for example, Justin Fenton “Annapolis business owner sentenced for
scamming people across the world who sought his help
with surrogate
pregnancies” Baltimore Sun (online ed, Baltimore (MD), 21 April
2021); and discussion in Debra Wilson “Avoiding the Public Policy and
Human Rights Conflict
in Regulating Surrogacy: The Potential Role of Ethics
Committees in Determining Surrogacy Applications” (2017) 7 UC Irvine
L Rev
653 at 663–664.
- Re
an application by DMW and KW [2012] NZFC 2915; Paradiso & Campanelli
v Italy ECHR 25358/12, 24 January 2017 (Grand Chamber); and Permanent Bureau
of the Hague Conference on Private International Law A Study of
Legal
- 3.42 Finally, it
is also important to recognise that surrogacy does not take place within a
vacuum but within an existing family environment.
It may raise particular
concerns for whānau Māori, due to implications for whakapapa and
obligations arising from whanaungatanga
(kinship). It can also have implications
for any existing children. All children have the same rights under UNCROC, and
any siblings
of surrogate-born children therefore have the same rights to
preserve their identity, including their relationship with their family.64 They also have the right to
express their views on all matters affecting them and for their views to be
given due weight according
to their age and maturity.65
PRINCIPLE 4: PARTIES SHOULD HAVE EARLY CLARITY AND CERTAINTY
ABOUT THEIR RIGHTS AND OBLIGATIONS
- 3.43 This
reflects a guiding principle recommended in the Commission’s 2005 report
New Issues in Legal Parenthood and remains just as relevant today.66 There should be clarity and
certainty, at the earliest possible time, about each party’s rights and
obligations before, during
and after a surrogacy arrangement. This will in turn
reduce the uncertainty and risk of disagreements arising between the
parties.
- 3.44 The need
for early clarity and certainty is most evident in relation to the legal
parent-child relationship between intended
parents and surrogate-born children.
Important rights and protections flow from legal parent-child relationships,
including nationality
and citizenship. We discuss this further in Chapter 7.
Recognition of this legal parent-child relationship is also important to
upholding
the child’s rights to identity.67 As the Commission observed
in 2005:68
Where a number of
adults have been involved in a child’s creation, the law needs to
declare, at the first appropriate opportunity,
what their legal status,
responsibilities and rights to the child are. Certainty and clarity are
important for the harmonious
functioning of the child’s family and to
enable people to plan their lives.
Parentage and the Issues arising from International Surrogacy
Arrangements (Preliminary Document No 3C, March 2014, The Hague) at
[189].
- United
Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), art 8(1).
- United
Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), art 12(1).
- Te
Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005) at [1.20]. A similar guiding principle was recommended in South
Australian Law Reform Institute Surrogacy: A Legislative Framework
– A Review of Part 2B of the Family Relationships Act 1975 (SA)
(Report 12, 2018), R11; and Michael Gorton Helping Victorians create
families with assisted reproductive treatment: Final Report of the Independent
Review of Assisted Reproductive
Treatment (Victorian Department of Health
and Human Services, Melbourne, May 2019), R63. The need for
legal
certainty is also highlighted in Claire Fenton-Glynn and Jens
M Scherpe “Surrogacy in a Globalised World: Comparative Analysis
and
Thoughts on Regulation” in Jens M Scherpe, Claire Fenton-Glynn and Terry
Kaan (eds) Eastern and Western Perspectives on Surrogacy (Intersentia,
Cambridge (UK), 2019) 515 at 591–592.
67 Mennesson v France [2014] 3
ECHR 255 at [80] and [97]–[100].
68 Te Aka Matua o te Ture | Law
Commission New Issues in Legal Parenthood (NZLC R88, 2005) at [1.20].
PRINCIPLE 5: INTENDED PARENTS SHOULD BE SUPPORTED TO ENTER
SURROGACY ARRANGEMENTS IN AOTEAROA NEW ZEALAND RATHER THAN OFFSHORE
- 3.45 This
principle reflects the need to recognise the reality of international surrogacy.
As some commentators observe:69
Legislators cannot bury
their heads in the sand: surrogacy is not going to go away. It is now an
established artificial reproductive
technique, and in a global marketplace,
there is always going to be somewhere, somehow, that it is available. The only
question is
how we deal with the consequences.
- 3.46 As we
explore in Chapter 9, international surrogacy arrangements are usually
commercial in nature and the disparity in regulation
of surrogacy around the
world means a surrogacy arrangement entered into in another country may lack
safeguards and place the parties
at greater risk. Additionally, international
surrogacy can create complex legal and practical problems when intended parents
bring
their child back into their country.
- 3.47 In response
to these concerns and the global reality of international surrogacy, policy
makers around the world are looking at
ways to support citizens to pursue
surrogacy within their own country rather than overseas.70 In 2021, Ireland’s
Special Rapporteur on Child Protection reported that the best way to avoid the
risks associated with international
surrogacy was to “incentivise intended
parents to make use of a domestic process that is regulated to the highest
children’s
rights standards”.71 He recommended this could be
achieved by allowing for the recognition of domestic surrogacy arrangements
through a procedure that
is less burdensome than that applicable to
international arrangements and through awareness-raising measures designed to
inform intended
parents of this fact.72
- 3.48 We think it
is important that New Zealanders are supported to enter surrogacy arrangements
in Aotearoa New Zealand to minimise
the need for intended parents to rely on
international surrogacy to build their family. This is consistent with the views
of the
- Claire
Fenton-Glynn and Jens M Scherpe “Surrogacy in a Globalised World:
Comparative Analysis and Thoughts on Regulation”
in Jens M Scherpe, Claire
Fenton-Glynn and Terry Kaan (eds) Eastern and Western Perspectives on
Surrogacy (Intersentia, Cambridge (UK), 2019) 515 at 592.
- See,
for example, Conor O’Mahony A Review of Children’s Rights and
Best Interests in the Context of Donor-Assisted Human Reproduction and Surrogacy
in Irish
Law (Department of Children, Equality, Disability, Integration and
Youth, Ireland, December 2020) at 15; Law Commission of England and
Wales and
Scottish Law Commission Building families through surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at [2.72]; and (4
June 2015) South Australia Parliamentary Debates, House of Assembly 1523 (Family
Relationships
(Surrogacy) Amendment Bill, John Gardner MP). See also Australian
Human Rights Commission Submission to the House of Representatives Standing
Committee on Social Policy and Legal Affairs: Inquiry into the Regulatory and
Legislative Aspects of Surrogacy Arrangements (17 February 2016) at [80];
and Ruth Walker and Liezl van Zyl Towards a Professional Model of Surrogate
Motherhood (Palgrave MacMillan, London, 2017) at 43 and 187, where the
authors argue that domestic surrogacy is usually preferable to international
surrogacy, which tends to be poorly regulated, and that properly regulating
domestic surrogacy could lead to fewer intended parents
engaging in
international surrogacy.
- Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(Department of Children, Equality, Disability, Integration and Youth,
Ireland, December 2020) at 15.
- Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(Department of Children, Equality, Disability, Integration and Youth,
Ireland, December 2020) at 15.
Advisory Committee on Assisted Reproductive Technology.73 This will involve addressing
the current practical and legal barriers to accessing surrogacy in Aotearoa New
Zealand that are driving
intended parents overseas, such as the lack of legal
certainty and the limited availability of New Zealanders willing to act as
surrogates.
We look at ways to do so throughout this Issues
Paper.
- 3.49 Supporting
New Zealanders to enter surrogacy arrangements in Aotearoa New Zealand would
avoid the risks associated with international
surrogacy and would also ensure
the following:
(a) Surrogacy arrangements are undertaken within a
regulatory framework with appropriate safeguards that uphold New Zealand human
rights obligations and health standards. Parties to a surrogacy arrangement and
any resulting children would be protected by the
provisions of the HART Act and
other New Zealand requirements, including the New Zealand Fertility Services
Standard (which will
be replaced by Ngā Paerewa Health and Disability
Services Standard NZS 8134:2021 in February 2022)74 and the Code of Health and
Disability Services Consumers’ Rights.75
(b) Surrogate-born children can access information about their genetic and
gestational origins, consistent with their rights to identity
discussed
above.
(c) The intended parents (and the surrogate-born child) are closer
geographically to the surrogate, which may help to promote positive
and ongoing
relationships.
(d) The intended parents and surrogate can remain close to their own family
and support networks during the pregnancy and after birth.
(e) The intended parents do not incur overseas travel and other costs
associated with spending time away from Aotearoa New Zealand.
They also avoid
unforeseen events that may disrupt international travel, like the Covid-19
pandemic.
- 3.50 We also
think that this approach would be supported by intended parents, as several
people who pursued surrogacy offshore have
told us that they would have favoured
an arrangement in Aotearoa New Zealand.76
- Advisory
Committee on Assisted Reproductive Technology Second Round of
Consultation on the Proposed Donation and Surrogacy Guidelines: further
changes since ACART’s 2017 consultation
(February 2019) at [62]. See
also Advisory Committee on Assisted Reproductive Technology Advice to the
Minister of Health on requirements for importing and exporting in vitro gametes
and embryos for human reproductive research
and human assisted reproductive
technology (March 2015) at
[111].
74 Pursuant to the
Health and Disability Services (Safety) Standards Notice 2021.
- As
observed in Advisory Committee on Assisted Reproductive Technology Advice to
the Minister of Health on requirements for importing and exporting in vitro
gametes and embryos for human reproductive
research and human assisted
reproductive technology (March 2015) at [111].
- Similar
to the views of New Zealanders seeking ovum or sperm donors, who have a strong
preference to be treated in Aotearoa New Zealand
using gametes donated by New
Zealanders: Advisory Committee on Assisted Reproductive Technology Advice to
the Minister of Health on requirements for importing and exporting in vitro
gametes and embryos for human reproductive research
and human assisted
reproductive technology (March 2015) at [18] and
[108].
PRINCIPLE 6: SURROGACY LAW SHOULD ENABLE MĀORI TO ACT IN
ACCORDANCE WITH TIKANGA AND PROMOTE RESPONSIBLE KĀWANATANGA THAT
FACILITATES TINO RANGATIRATANGA
- 3.51 The
principles above focus on the rights and interests of individuals affected by
surrogacy arrangements. They reflect international
best-practice guidance in
relation to surrogacy. Equally important, however, is that surrogacy law reform
is responsive to the unique
cultural and constitutional considerations in
Aotearoa New Zealand.
- 3.52 We think
that surrogacy law should enable Māori to act in accordance with tikanga
Māori (customary practices) and promote
responsible kāwanatanga (the
right of the Crown to govern) that facilitates tino rangatiratanga (the right of
Māori to
exercise authority according to tikanga) under te Tiriti o
Waitangi | the Treaty of Waitangi (the Treaty).77
- 3.53 Below we
discuss the constitutional significance of tikanga Māori and the Treaty to
the development of the law in Aotearoa
New Zealand. We then explain how this
principle will guide our approach to this
review.
Tikanga Māori
- 3.54 Tikanga
Māori is the first law of Aotearoa New Zealand and is an independent source
of rights and obligations in te ao Māori.78 It forms part of the common
law79 and can be integrated
into law by reference in legislation.80 It is also significant in
terms of Treaty rights and obligations that pertain to tikanga, specifically as
a necessary and inevitable
expression of tino rangatiratanga guaranteed to
Māori,81 discussed
below.
- When
discussing te Tiriti o Waitangi | the Treaty of Waitangi in this paper, we use
“the Treaty” as a generic term that
is intended to capture the
Māori text (te Tiriti o Waitangi) and the English text (the Treaty of
Waitangi). When we are referring
to the Māori text only, we either use the
term “te Tiriti”, refer to “the Māori text” or make
this
clear in the context. When we are referring to the English text only, we
refer to “the English text” or make this clear
in the context. To
the extent that the principles of the Treaty, which have been developed through
jurisprudence, substantively reflect
the rights and obligations arising from the
texts, the principles may also be captured by the term “the Treaty”.
Otherwise,
we specifically refer to “the principles of the Treaty”
or to specific principles. For a more detailed description of
the general
significance of tikanga Māori and the Treaty, see the recent discussion in
Te Aka Matua o te Ture | Law Commission
Review of Succession Law: Rights to a
person’s property on death | He arotake i te āheinga ki
ngā rawa a te tangata ka mate ana (NZLC IP46, 2021) at
[2.6]–[2.31]; and Te Aka Matua o te Ture | Law Commission The Use of
DNA in Criminal Investigations | Te Whakamahi i te Ira Tangata i ngā
Mātai Taihara (NZLC R144, 2020) at [2.6]–[2.36].
- See
Ani Mikaere “The Treaty of Waitangi and Recognition of Tikanga
Māori” in Michael Belgrave, Merata Kawharu and
David Williams (eds)
Waitangi Revisited: Perspectives on the Treaty of Waitangi (2nd ed,
Oxford University Press, Auckland, 2005) 330 at 331–334; and Joseph
Williams “Lex Aotearoa: An Heroic Attempt
to Map the Māori Dimension
in Modern New Zealand Law” (2013) 21 Taumauri | Waikato L Rev 1 at
2–5.
- As
recognised by te Kōti Mana Nui | the Supreme Court in Takamore v Clarke
[2012] NZSC 116, [2013] 2 NZLR 733 at [94]–[95]. In Ellis v R
[2020] NZSC 89, submissions were sought on the application of tikanga on
the question of whether the Court has jurisdiction to hear an appeal against
conviction after the death of the appellant. The Court issued its judgment
allowing the appeal to proceed, but reasons for that decision
are to be provided
with the judgment on the substantive appeal: at [5]. See also Ngawaka v
Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291
at [43]–[47] and [58].
- Legislation
referencing tikanga include the Oranga Tamariki Act 1989 (see s 2 definitions of
“tikanga Māori” and
“mana tamaiti (tamariki)”);
Resource Management Act 1991; and Taumata Arowai–the Water Services
Regulator Act 2020.
- Joseph
Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law” (2013)
21 Taumauri | Waikato L
Rev 1 at 9.
- 3.55 Tikanga
includes a system of principles that guide and direct rights and obligations in
a Māori way of living. It governs
relationships by providing a shared basis
for “doing things right, doing things the right way, and doing things for
the right
reasons”.82
- 3.56 The
significance of tikanga to the development of the law is reinforced by Aotearoa
New Zealand’s international obligations
in relation to Māori as
individuals, including its affirmation in 2010 of Te Whakapuakitanga o te
Rūnanga Whakakotahi
i ngā Iwi o te Ao mō ngā Tika o
ngā Iwi Taketake | United Nations Declaration on the Rights of Indigenous
Peoples.83
The
Treaty
- 3.57 The Treaty
is a founding document of government.84 It comprises a Māori
text and an English text, and there are differences between them.
- 3.58 In the
Māori text, article 1 provides that Māori rangatira grant the Crown
kāwanatanga, the right to govern. Article
2 provides that the Crown will
protect the exercise of tino rangatiratanga over lands, villages and taonga
katoa (all things valued
and treasured). Tino rangatiratanga has been described
as the exercise of the chieftainship of rangatira, which is unqualified except
by applicable tikanga.85
- 3.59 Article 1
of the English text provides that Māori rangatira cede the sovereignty they
exercise over their respective territories
to the Crown, while article 2
guarantees to Māori full exclusive and undisturbed possession of their
lands and other properties.86
- 3.60 Under
article 3 of the English text, the Crown imparted to Māori its protection
as well as all the rights and privileges
of British subjects. A similar
undertaking was conveyed in article 3 of the Māori text, which provides
that the Crown will care
for Māori and give to Māori the same rights
and duties of citizenship as the people of England.87 Article 3 has been understood
as a guarantee of equity between Māori and other New Zealanders.88
- Bishop
Manuhuia Bennett “Pū Wānanga Seminar” (presented with Te
Mātāhauariki Institute) as cited in
Richard Benton, Alex Frame and
Paul Meredith Te Mātāpunenga: A Compendium of References to the
Concepts and Institutions
of Māori Customary Law (Victoria University
Press, Wellington, 2013) at 431.
- Te
Whakapuakitanga o te Rūnanga Whakakotahi i ngā Iwi o te Ao mō
ngā Tika o ngā Iwi Taketake | United Nations
Declaration on the Rights
of Indigenous Peoples GA Res 61/295 (2007).
- Kenneth
Keith “On the Constitution of New Zealand: An Introduction to the
Foundations of the Current Form of Government”
in Cabinet Office
Cabinet Manual 2017 at 1.
- IH
Kawharu (ed) Waitangi: Māori and Pākehā Perspectives of the
Treaty of Waitangi (Oxford University Press, Auckland, 1989) at 319. Kawharu
explained that the term emphasised to rangatira their complete control according
to their customs. The term has also been translated as “paramount
authority”: Margaret Mutu “Constitutional Intentions:
The Treaty of
Waitangi Texts” in Malcolm Mulholland and Veronica Tawhai (eds) Weeping
Waters – The Treaty of Waitangi and Constitutional Change (Huia
Publishers, Wellington, 2010) 13 at 19–22; and “absolute
authority”: Te Rōpū
Whakamana i te Tiriti o Waitangi
| Waitangi Tribunal Whaia te Mana Motuhake | In Pursuit of Mana
Motuhake: Report on the Māori Community Development Act Claim (Wai
2417, 2015) at 26.
86 Article 2 also gave the Crown an
exclusive right of pre-emption over any land Māori wanted to
“alienate”.
- IH
Kawharu (ed) Waitangi: Māori and Pākehā Perspectives of the
Treaty of Waitangi (Oxford University Press, Auckland, 1989) at 321.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū
Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates
(Wai 2540, 2017) at 27.
- 3.61 At the time
of signing the Treaty, Crown representatives made oral undertakings and
assurances to Māori, including an undertaking
to respect Māori customs
and law.89 Te Rōpū
Whakamana i te Tiriti | Waitangi Tribunal (the Tribunal) has held that these
also form part of the agreement reached.90
- 3.62 Not all
hapū (sub-tribes) were represented among the rangatira signatories to the
Treaty. The Crown has taken the position
that the benefit of the promises it
made in the Treaty extends to all Māori, whether or not they signed the
Treaty.91
- 3.63 The
overwhelming majority of rangatira signatories signed the Māori text rather
than the English text.92 As a
result, the Tribunal has said that considerable weight should be given to the
Māori text when there is a difference between
them.93
- 3.64 Five years
before the Treaty was signed, in 1835, a number of northern rangatira signed He
Whakaputanga o te Rangatiratanga o
Nu Tireni | the Declaration of Independence
of the United Tribes of New Zealand. He Whakaputanga was a declaration of the
sovereignty
and independence of those rangatira. The Tribunal has considered the
“striking absence” of any record of explicit discussion
about its
ongoing relevance or its relationship with the Treaty.94 The Tribunal has also
considered the failure of the British to explain why and how the Treaty
nullified He Whakaputanga to be significant.95
89 Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report
(Wai 45, 1997) at 114.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Whakaputanga me te Tiriti | The Declaration and the Treaty: The Report on
Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at
526–527.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te
Urewera (Wai 894, 2017) vol 1 at 139. This is reflected in s 9(1) of the
Tūhoe Claims Settlement Act 2014. In 2018, the Tribunal concluded
that the
Treaty applied to non- signatory hapū as a unilateral set of promises by
the Crown to respect and protect their
tino rangatiratanga and other rights
just as it would for hapū whose leaders had signed, noting that, out of
practical necessity,
all Māori needed to engage with the Crown on the
basis of the Treaty’s guarantees, whether they had signed the Treaty
or
not: Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal
Te Mana Whatu Ahuru: Report on Te Rohe Pōtae Claims – Parts I
and II (Wai 898, 2018) at 188.
- It
has long been acknowledged that most of the more than 500 rangatira who signed
the Treaty signed the Māori text, not
the English text, following their
debate and discussion in te reo Māori. While some signed the English
sheet, most if not
all of them would have relied on the oral explanation of
the Treaty’s terms in Māori, which likely reflected the Māori
text. See Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal Te Mana Whatu Ahuru: Report on Te Rohe Pōtae Claims
– Parts I and II (Wai 898, 2018) at 130, 136, 139–140 and 146.
See also Te Rōpū Whakamana I te Tiriti o Waitangi | Waitangi Tribunal
He Whakaputanga me te Tiriti | The Declaration and the Treaty:
The Report on Stage 1 of Te Paparahi o Te Raki Inquiry (Wai 1040,2014) at
522; and Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and
Māori Law (Victoria University Press, Wellington, 2016) at 7.
- Consistent
with the contra proferentem rule of the law of treaties, where there is
ambiguity, a provision should be construed against the party that drafted or
proposed
the relevant provision. See Te Rōpū Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal Report of The Waitangi Tribunal on The Orakei
Claim (Wai 9, 1987) at 180.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Whakaputanga me te Tiriti | The Declaration and the Treaty: The Report on
Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 520.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Whakaputanga me te Tiriti | The Declaration and the Treaty: The Report on
Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 521. See
also Ani Mikaere Colonising Myths: Māori Realities – He Rukuruku
Whakaaro (Huia Publishers, Wellington, 2011) at 127–128; and He
Whakaaro Here Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa
– The Independent Working Group on Constitutional
Transformation
(January 2016) at 43–49.
Tino rangatiratanga and kāwanatanga
- 3.65 With
respect to articles 1 and 2 of te Tiriti, the Tribunal has observed:96
The guarantee of tino
rangatiratanga requires the Crown to acknowledge Māori control over their
tikanga, resources, and people
and to allow Māori to manage their own
affairs in a way that aligns with their customs and values.
- 3.66 In te ao
Māori, rangatiratanga is both the authority of a rangatira and the
authority of Māori as people. Rangatiratanga
involves the exercise of mana
(authority) in accordance with and qualified by tikanga and associated kawa
(protocols). Through tikanga,
rangatiratanga manages a dynamic interface between
people, their environment and the non-material world.97
- 3.67 It is the
substance of this rangatiratanga that needs to be upheld and not interfered with
through the guarantee of tino rangatiratanga.
In effect, te Tiriti envisages the
co-existence of both rangatiratanga and kāwanatanga as different but
intersecting systems
of political and legal authority.98
- 3.68 Tino
rangatiratanga is exercised within te ao Māori every day and independently
of state law, in accordance with tikanga
Māori. However, in some
situations, consistency with te Tiriti may require that provision for the
exercise of tino rangatiratanga
be made in legislation. Te Tiriti also requires
careful thought about what responsible kāwanatanga involves.
- 3.69 This
approach to articles 1 and 2 of te Tiriti allows an end to debating the
different texts in an effort to understand what
was exchanged between Māori
and the British and how the wording of each of the texts should be qualified. 99 Instead, it focuses on the
relationship between tino rangatiratanga and kāwanatanga. This allows us to
ask how responsible kāwanatanga
might be exercised in specific contexts,
including how tino rangatiratanga might be facilitated.
The Treaty principles
- 3.70 Treaty
principles have also been developed by the courts and the Tribunal that
substantively reflect the rights and obligations
arising from the Treaty texts.
The Tribunal was established under the Treaty of Waitangi Act 1975, and its
functions include inquiring
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Hauora:
Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai
2575, 2019) at 28. See also Te Rōpū Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and
Disproportionate Reoffending Rates (Wai 2540, 2017) at 21; and Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Whaia te
Mana Motuhake | In Pursuit of Mana Motuhake: Report on the Māori
Community Development Act Claim (Wai 2417, 2015) at 26.
- New
Zealand Māori Council Kaupapa: te wāhanga tuatahi (Wellington,
1983) at 5–6; Hirini Moko Mead Tikanga Māori: Living by Māori
Values (rev ed, Huia Publishers, Wellington, 2016) at 41–42 and 229;
and Tāhū o te Ture | Ministry of Justice He Hīnātore ki
te Ao Māori: A Glimpse into the Māori World – Māori
Perspectives on Justice (March 2001) at 36–38. See also the discussion
in He Whakaaro Here Whakaumu Mō Aotearoa: The Report of Matike Mai
Aotearoa – The Independent Working Group on Constitutional
Transformation
(January 2016) at 34.
- See
discussion in Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal He Whakaputanga me te Tiriti | The Declaration and the
Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai
1040, 2014) at 524; and Carwyn Jones New Treaty, New Tradition: Reconciling
New Zealand and Māori Law (Victoria University Press, Wellington, 2016)
at 42.
99 Article 3 in both
the Māori and English texts conveys an undertaking of similar effect.
into and making recommendations on claims that acts or omissions of the Crown
are inconsistent with “the principles of the
Treaty”.100 In performing this function,
the Tribunal must have regard to the two texts of the Treaty and, for the
purposes of the Treaty of Waitangi
Act, has exclusive authority to determine the
meaning and effect of the texts and issues raised by the differences between
them.101
- 3.71 The
Tribunal has explained that, although its statutory role is to inquire into the
consistency of the Crown’s acts and
omissions against the Treaty
principles, this “does not mean that the terms [of the Treaty] can be
negated or reduced”.
102
Rather, the principles “enlarge the terms, enabling the Treaty to be
applied in situations that were not foreseen or discussed
at the time”.103
- 3.72 The
principles of the Treaty have been described by the Privy Council as follows:104
... the
“principles” are the underlying mutual obligations and
responsibilities which the Treaty places on the parties.
They reflect the
intent of the Treaty as a whole and include, but are not confined to, the
express terms of the Treaty.
- 3.73 Given the
Treaty’s constitutional significance, in the absence of clear words to the
contrary, the courts will presume
that Parliament intends to legislate in a
manner that is consistent with the principles of the Treaty and will interpret
legislation
accordingly.105
- 3.74 In several
landmark cases, the courts have identified three broad Treaty principles: the
principles of partnership, active protection
and redress.106 However, the nature of the
Treaty as a living document means that Treaty principles are constantly evolving
as the Treaty is applied
to new issues and situations.107 Neither the courts nor the
Tribunal have sought to produce a definitive list of principles.108 As Te Kōti Pira | The
Court of Appeal has observed, “[t]he Treaty obligations are ongoing. They
will evolve from generation
to generation as conditions change”.109 Consequently, over time,
other principles and duties associated with these three broad principles have
been developed by the Tribunal
and the courts.
- 3.75 In our
view, this review engages in particular the principles of partnership, active
protection, equity and “options”
(Māori having choices or
options available to them).
100 Treaty of Waitangi Act
1975, ss 5(1) and 6(1).
101 Treaty of Waitangi Act 1975,
preamble and s 5(2).
102 Te Rōpū Whakamana i te
Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45,
1997) at 385–386.
103 Te Rōpū Whakamana i te
Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45,
1997) at 386.
104 New Zealand Maori Council v
Attorney-General [1994] 1 NZLR 513 (PC) [Broadcasting Assets] at 517 per
Lord Woolf.
105 New Zealand Maori Council v
Attorney-General [1987] 1 NZLR 641 (CA) [Lands] at 655–656 per Cooke
P.
- See
New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA)
[Lands]; New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513
(PC) [Broadcasting Assets]; and Te Runanga o Wharekauri Rekohu Inc v
Attorney- General [1992] NZCA 503; [1993] 2 NZLR 301 (CA).
- Te
Puni Kōkiri | Ministry of Māori Development He Tirohanga ō
Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of
Waitangi as expressed by the Courts and
the Waitangi Tribunal (2001) at
77.
- Te
Puni Kōkiri | Ministry of Māori Development He Tirohanga ō
Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of
Waitangi as expressed by the Courts and
the Waitangi Tribunal (2001) at
77.
109 Te Runanga o
Muriwhenua Inc v Attorney-General [1990] NZCA 7; [1990] 2 NZLR 641 (CA) at 656 per Cooke
P.
Partnership
- 3.76 The Treaty
established a relationship akin to a partnership and imposed a duty on the
Crown and Māori “to act towards
each other reasonably and with the
utmost good faith”.110
This principle requires Māori participation in decision making that
impacts on the lives of Māori. 111 The starting point should be
shared decision making, but the form partnership takes will depend on what the
rights and interests of
the Treaty partners require in the circumstances.112 Both partners should
participate in identifying the nature and extent of the rights and interests
engaged and how they may be
protected through the partnership.113
- 3.77 The Crown
is also required to fully inform itself of the rights and interests of
Māori to make informed decisions on matters
that affect Māori. 114 The requirement for the
Crown to partner with Māori is heightened where disparities in outcomes
exist.115
Active protection
- 3.78 The
principle of active protection emerges from the relationship between
kāwanatanga and tino rangatiratanga in articles
1 and 2 of te Tiriti.116 It encompasses an obligation
to exercise responsible kāwanatanga while actively protecting and
facilitating tino rangatiratanga,
including the exercise by Māori of their
authority in accordance with tikanga. 117 Part of active protection is
ensuring that health services are culturally
110 New Zealand Maori
Council v Attorney-General [1987] 1 NZLR 641 (CA) [Lands] at 667 per
Cooke P.
- This
is also required by the principle of equity, discussed below and derives from
the guarantees contained in article 2 of the Māori
text and article 3 of
the Māori and English texts. See Te Rōpū Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal
Te Whanau o Waipareira Report (Wai 414,
1998) at 231–232; and Mānuka Henare and Edward Douglas “Support
for Māori Social Organisations especially
Whanaunga, Hapū, Iwi”
in Report of the Royal Commission on Social Policy | Te Kōmihana
A Te Karauna Mō Ngā Āhuatanga-Ā-Iwi: The April Report
– Future Directions (Associated Papers, Volume III, Part One, April
1988) 172 at 173.
- See
Te Aka Matua o te Ture | Law Commission The Treaty of Waitangi and Maori
Fisheries | Mataitai: Nga Tikanga Maori me te Tiriti o Waitangi
(NZLC PP9, 1989) at [2.12], [3.9]–[3.11] and [14.12]; and Te Aka Matua
o te Ture | Law Commission Māori Custom and Values in New Zealand Law
(NZLC SP9, 2001) at 80.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko
Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy
Affecting Māori Culture and Identity –
Te Taumata Tuarua
(Wai 262, 2011) at 341. See also New Zealand Maori Council v
Attorney-General [1987] 1 NZLR 641 (CA) [Lands] at 667 per Cooke P;
and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal
The Report on the Crown’s Review of the Plant Variety Rights
Regime: Stage 2 of the Trans-Pacific Partnership Agreement
Claims (Wai 2522,
2020) at 12.
- This
duty is also engaged by the principle of active protection, discussed below. See
Te Rōpū Whakamana i te Tiriti o Waitangi
| Waitangi Tribunal The
Whakatōhea Mandate Inquiry Report (Wai 2662, 2018) at 21–22.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal
Tū Mai te Rangi! Report on the Crown and Disproportionate
Reoffending Rates (Wai 2540, 2017) at 62–63.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on
the Crown’s Review of the Plant Variety Rights Regime: Stage 2 of the
Trans-Pacific Partnership Agreement Claims
(Wai 2522, 2020) at 13; and
Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Aha i Pērā Ai? The Māori Prisoners’ Voting Report (Wai
2870, 2020) at 12.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha i
Pērā Ai? The Māori Prisoners’ Voting Report (Wai 2870,
2020) at 13; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal Report on the Crown’s Review of the Plant Variety Rights
Regime: Stage 2 of the Trans-Pacific Partnership Agreement Claims (Wai 2522,
2020) at 13; and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal The Ngāpuhi Mandate Inquiry Report (Wai 2490, 2015) at
30–31.
appropriate. 118 The Crown is
also required to act, to the fullest extent practicable, to achieve equitable
outcomes for Māori.119
Equity
- 3.79 The
principle of equity arises from article 3 of the Māori and English texts
of the Treaty and imposes an obligation
on the Crown to act fairly between
Māori and non-Māori.120 This
principle, in conjunction with the principle of active protection, imposes a
duty on the Crown to commit to achieving equitable
outcomes for Māori.121
Options
- 3.80 Under the
principle of options, Māori have “the right to choose their social
and cultural path”.122 The
Tribunal has described the choice as one to:123
... develop along customary
lines and from a traditional base, or to assimilate into a new way.
Inferentially it offered a third
alternative, to walk in two worlds.
- 3.81 This right
derives from the Treaty’s guarantee to Māori of tino rangatiratanga
under article 2 of te Tiriti and the
rights and privileges of British
citizenship arising under article 3 of the Māori and English texts. 124 It follows that the Crown
must adequately protect the availability and viability of kaupapa Māori
solutions in a way that Māori
are not disadvantaged by their choices.125
Applying
Principle 6 in this review
- 3.82 In the next
chapter, we focus on Māori and surrogacy. We explore aspects of te ao
Māori that may be relevant in the
surrogacy context and consider Māori
perspectives on surrogacy. We then identify potential matters of particular
concern to
Māori in surrogacy practice, law and regulation as well as
options for reform which are intended to enable Māori to act
in act in
accordance with tikanga and promote responsible kāwanatanga that
facilitates tino rangatiratanga under the Treaty.
Where appropriate, we also
indicate where options may ensure the Crown is complying with its obligations
under the Treaty.
- 3.83 The matters
addressed in Chapter 4 and the feedback we receive during consultation will be
reflected throughout our report and
will influence our
recommendations.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Hauora:
Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai
2575, 2019) at 31.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Hauora:
Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai
2575, 2019) at 163.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū
Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates
(Wai 2540, 2017) at 27.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Hauora:
Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai
2575, 2019) at 163.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The
Napier Hospital and Health Services Report (Wai, 692, 2001) at
64.
123 Te Rōpū
Whakamana o Te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Fishing
Report (Wai 22, 1988) at 195.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Hauora:
Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai
2575, 2019) at 35.
125 Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Matua
Rautia: The Report on the Kōhanga Reo Claim
(Wai 2336, 2013) at 68.
QUESTION
|
|
Q1
|
Do you agree with our six guiding principles for surrogacy law reform? If
not, what
|
changes should we make?
|
CHAPTER 4
Māori
and surrogacy
IN THIS CHAPTER, WE CONSIDER:
matters that may be of
particular concern to Māori in surrogacy practice, law and
regulation.
Māori perspectives on surrogacy; and
•
•
- aspects of te ao
Māori that may be relevant in the surrogacy context;
INTRODUCTION
- 4.1 This
chapter considers matters relevant to enabling Māori to act in accordance
with tikanga Māori (customary practices)
and promoting responsible
kāwanatanga (the right of the Crown to govern) that facilitates tino
rangatiratanga (the right of
Māori to exercise authority according to
tikanga) under te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty),
consistent
with our guiding principles for surrogacy law reform.
- 4.2 We have
included basic explanations of lesser-known Māori terms to assist readers
with understanding their meaning in the
specific context in which they are used.
We note that these explanations are not intended to be prescriptive or reductive
and do
not necessarily reflect the depth and breadth of meaning of these words
in te reo Māori.
TE AO MĀORI | A MĀORI WORLD VIEW
- 4.3 In
this section, we consider aspects of te ao Māori that may be relevant in
the surrogacy
context.
The
significance of women and their ability to give birth
Māori cosmology and ngā kōrero tuku iho
- 4.4 Women
and their ability to give birth have special significance in te ao Māori.
Maternal figures are prominent in Māori
cosmology and ngā kōrero
tuku iho (narratives passed
down by Māori through oral tradition),1 which form the basis of
many tikanga pertaining to Māori women and their birthing abilities.2
- 4.5 According to
Ani Mikaere:3
A discussion
of the roles of women ... must begin with our creation stories. Māori
cosmogony not only provides the key to an
understanding of how our tūpuna
viewed the world and their place within it; it also informs our present
conceptions of ourselves
and therefore continues to shape our practices and
beliefs.
- 4.6 While there
are variations in versions and interpretations of Māori cosmology, the
version most widely understood and accepted
places whakapapa (genealogy) at
the core of cosmic creation.4
Whakapapa originates from the three phases of the creation of the
world, from Te Kore (energy, potential, the void, nothingness)
to Te Pō
(form, the dark, the night) to Te Ao Mārama (emergence, light and
reality, dwelling place of humans).5
- 4.7 According to
some accounts, Papatūānuku (the earth mother) and Ranginui (the sky
father) came into existence in Te Pō.6 They maintained a tight
embrace until their children separated them, thus creating and enabling
themselves to emerge into Te Ao Mārama.
7
1 Jane McRae Māori
Oral Tradition: He Kōrero nō te Ao Tawhito (Auckland University
Press, Auckland, 2017) at 1.
- See
Kirsten Aroha Linda Gabel “Poipoia te tamaiti ki te
ūkaipō” (PhD thesis, Te Whare Wānanga o Waikato
| The
University of Waikato, 2013) at 57; Wikitoria Theresa August “The
Māori Female – Her Body, Spirituality, Sacredness
and Mana. A Space
within Spaces” (Master of Social Sciences thesis, Te Whare Wānanga o
Waikato | The University of Waikato,
2004) at 62.
- Ani
Mikaere The Balance Destroyed: the consequences for Māori women of the
colonisation of Tikanga Māori (International Research Institute for
Māori and Indigenous Education, Auckland, 2003) at 13 as cited in Kirsten
Aroha Linda Gabel
“Poipoia te tamaiti ki te ūkaipō” (PhD
thesis, Te Whare Wānanga o Waikato | The University of Waikato,
2013) at
54, n 8.
- Kuni
Jenkins and Helen Mountain Harte Traditional Māori parenting: A
Historical Review of Literature of Traditional Māori Child Rearing
Practices in Pre-European
Times (Te Kahui Mana Ririkiki, Auckland, 2011) at
2. See also Tāhū o te Ture | Ministry of Justice He
Hīnātore ki te Ao Māori: A Glimpse into the Māori World
– Māori Perspectives on Justice (March 2001) at 12. The
importance of this work lies in the significant expertise of the contributors to
it, who include John Clarke
(Director, Māori – Tāhū o te
Ture | Ministry of Justice); Roka Paora, Te Ru Wharehoka and Te Ariki
Morehu
(Ngā Kaumātua Āwhina); Te Wharehuia Milroy and
Wiremu Kaa (Māori Experts); Wilson Isaac, James Johnston, John
MacDonald,
Ani Mikaere, Moria Rolleston, Henare Tate, Merepeka Raukawa Tait, Iritana
Tawhiwhirangi and Betty Wark (Māori Focus
Group); Ramari Paul, Hui Kahu,
Jason Ataera and Chappie Te Kani (Tangata Whenua Student Work Programme).
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 12. See also Naomi Beth Simmonds “Tū te turuturu
nō Hine-te-iwaiwa: Mana wahine geographies of birth
in Aotearoa New
Zealand” (PhD thesis, Te Whare Wānanga o Waikato | The University of
Waikato, 2014) at 140–141.
- Kirsten
Aroha Linda Gabel “Poipoia te tamaiti ki te ūkaipō” (PhD
thesis, Te Whare Wānanga o Waikato | The
University of Waikato, 2013) at
58.
- See
Aroha Yates-Smith Hine! E Hine! Rediscovering the feminine in Maori
spirituality (PhD thesis, Te Whare Wānanga o Waikato | The University
of Waikato, 1998); and Ani Mikaere The Balance Destroyed: the consequences
for Māori women of the colonisation of Tikanga Māori
(International Research Institute for Māori and Indigenous Education,
Auckland, 2003) at 14 as cited in Kirsten Aroha Linda Gabel
“Poipoia te
tamaiti ki te ūkaipō” (PhD thesis, Te Whare Wānanga o
Waikato | The University of Waikato,
2013) at 58, n 16.
- 4.8 The three
phases of creation have been likened to the birth process. 8 According to Mikaere:9
The progression from Te Kore,
through Te Pō and on to Te Ao Mārama is an ongoing cycle of
conception, development within
the womb, and birth ... The female presence at
the beginning of the world is all encompassing. The female reproductive organs
provide
the framework within which the world comes into being.
- 4.9 The
prevalence of women in te ao Māori as maternal figures continues in the
whakapapa of humanity, which takes place
after the children of
Papatūānuku and Ranginui emerge into Te Ao Mārama. It is widely
accepted that the first
human, a woman named Hinetītama, was created by
Papatūānuku and Ranginui’s children with the assistance of
Papatūānuku,
who provided the uha (female element).10 Hinetītama and her
daughter Hinerauwharangi “are remembered and respected as a mother and
daughter model”.11
- 4.10 Other atua
wāhine (Māori female deities) are also influential in Māori
conceptions of women and their ability
to give birth. For instance,
Hine-te-iwaiwa (also referred to as Hina, Hinauri and other names)12 provides the “ultimate
archetype” for women.13
She is the “patron of new life and she presides over the whole
process of conception, formation of the foetus and the ultimate
birth of the
infant”.14
- 4.11 Further
evidence of females as significant figures in te ao Māori are apparent in
the quests of Māui, which Naomi
Simmonds has described as being
“rich in maternal metaphors”.15 Māui’s mother Taranga, upon
giving birth to Māui prematurely and believing him still-born, cut off her
hair, wrapped
him in it and gifted him to the sea. Māui’s kuia
(grandmother) Muriranga-whenua gifted him her jawbone, which he used
to fish up
Te Ika a Māui (the North Island) and subdue Tamanuiterā (the sun).
Mahuika, an atua wāhine, also assisted
when Māui sought to control
fire. Finally, in his pursuit of immortality, Māui was
crushed
- Ani
Mikaere Colonising Myths: Māori Realities – He Rukuruku Whakaaro
(Huia Publishers, Wellington, 2011) at 209; and Naomi Beth Simmonds
“Tū te turuturu nō Hine-te-iwaiwa: Mana wahine
geographies of
birth in Aotearoa New Zealand” (PhD thesis, Te Whare Wānanga o
Waikato | The University of Waikato, 2014)
at 140–141.
- Ani
Mikaere The Balance Destroyed: the consequences for Māori women of the
colonisation of Tikanga Māori (International Research Institute for
Māori and Indigenous Education, Auckland, 2003) at 16–17 as cited in
Kirsten Aroha
Linda Gabel “Poipoia te tamaiti ki te
ūkaipō” (PhD thesis, Te Whare Wānanga o Waikato | The
University
of Waikato, 2013) at 59, n 19.
- See
Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao
Māori: A Glimpse into the Māori World Māori – Perspectives
on Justice (March 2001) at 13–14; Naomi Beth Simmonds “Tū
te turuturu nō Hine-te-iwaiwa: Mana wahine geographies of birth
in Aotearoa
New Zealand” (PhD thesis, Te Whare Wānanga o Waikato | The University
of Waikato, 2014) at 157; and Kirsten
Aroha Linda Gabel “Poipoia te
tamaiti ki te ūkaipō” (PhD thesis, Te Whare Wānanga o
Waikato | The University
of Waikato, 2013) at
60–61.
11 Hirini Moko
Mead Tikanga Māori: Living by Māori Values (rev ed, Huia
Publishers, Wellington, 2016) at 322.
- Naomi
Beth Simmonds “Tū te turuturu nō Hine-te-iwaiwa: Mana wahine
geographies of birth in Aotearoa New Zealand”
(PhD thesis, Te Whare
Wānanga o Waikato | The University of Waikato, 2014) at 157; Kirsten Aroha
Linda Gabel “Poipoia
te tamaiti ki te ūkaipō” (PhD thesis,
Te Whare Wānanga o Waikato | The University of Waikato, 2013) at 62.
- Kirsten
Aroha Linda Gabel “Poipoia te tamaiti ki te ūkaipō” (PhD
thesis, Te Whare Wānanga o Waikato | The
University of Waikato, 2013) at
62.
- Hirini
Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia
Publishers, Wellington, 2016) at 323. Hinekotea, Hinekorito, Hinemakehu and
Hinekorako are other atua wāhine associated
with childbirth.
- Naomi
Beth Simmonds “Tū te turuturu nō Hine-te-iwaiwa: Mana wahine
geographies of birth in Aotearoa New Zealand”
(PhD thesis, Te Whare
Wānanga o Waikato | The University of Waikato, 2014) at 157; and Kirsten
Aroha Linda Gabel “Poipoia
te tamaiti ki te ūkaipō” (PhD
thesis, Te Whare Wānanga o Waikato | The University of Waikato, 2013) at
63.
between the thighs of Hinenuitepō as he attempted to reverse the birth
process, rendering humanity mortal for all eternity.16
Continuing whakapapa
- 4.12 Māori
women are seen as ngā whare tāngata (the houses of humanity)17 in te ao Māori due to
their ability to give birth. A significant level of mana (authority) and tapu
(sacredness) is accorded
to this ability, not only because it originates from
cosmic creation but because it ensures the continuation of whakapapa.18
- 4.13 An example
of where a woman’s ability to give birth overrode competing tensions
between iwi (tribes) is when an
arranged marriage was entered into by Meri
Ngaroto of Te Aupōuri to Pūhipi Te Ripi of Te Rarawa in order to
settle
peace in the 1830s.19
Ngaroto’s people wanted to perform karakia (incantations) prior to
the marriage to make her infertile. However, she reminded
them of the
importance of her ability to give birth to continue whakapapa. She likened
whānau to the harakeke (flax bush) in
a whakatauākī (a proverb
that can be traced to its original source). Parts of this
whakatauākī are well
known, though we consider its intended
meaning can only be fully understood if recited in full and the context in
which it
was said is explained:20
Hūtia te rito o te
harakeke If you pull out the shoot of the flax bush Kei hea te kōmako e
kō? Where will the bellbird
sing?
Whakataerangitia It will mill around
Rere ki uta It will fly inland
Rere ki tai It will fly seawards
Māu e ui mai Then you will ask me
He aha te mea nui o te ao? What is the most important thing in the world?
Māku e kī atu And I will say
He tangata, he tangata, he tangata! The people, the people, the people!
- Kirsten
Aroha Linda Gabel “Poipoia te tamaiti ki te ūkaipō” (PhD
thesis, Te Whare Wānanga o Waikato | The
University of Waikato, 2013) at
63–65.
- Rangimarie
Mihomiho Rose Pere “To Us the Dreamers are Important” in Leonie
Pihama and others (eds) Mana Wahine Reader: A Collection of Writings
1987-1998 – Volume 1 (Te Kotahi Research Institute, Hamilton, 2019) 4
at 11; Naomi Beth Simmonds “Tū te turuturu nō Hine-te-iwaiwa:
Mana
wahine geographies of birth in Aotearoa New Zealand” (PhD thesis, Te
Whare Wānanga o Waikato | The University of Waikato,
2014) at 157; and
Kirsten Aroha Linda Gabel “Poipoia te tamaiti ki te
ūkaipō” (PhD thesis, Te Whare Wānanga
o Waikato | The
University of Waikato, 2013) at 136. Whare tangata is also the word used for
womb: see Tāhū o te Ture |
Ministry of Justice He
Hīnātore ki te Ao Māori: A Glimpse into the Māori World
Māori – Perspectives on Justice (March 2001) at 221.
- Kirsten
Aroha Linda Gabel “Poipoia te tamaiti ki te ūkaipō” (PhD
thesis, Te Whare Wānanga o Waikato | The
University of Waikato, 2013) at
67.
- See
“Brief of evidence of Tania Rose Williams Blyth” (Wai 2915, A046, 21
July 2020), which is referred to in Te Rōpū
Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal He Pāharakeke, he Rito Whakakīkinga
Whāruarua: Oranga Tamariki Urgent Inquiry (Wai 2915, 2020) at 3.
- There
are many versions of this whakatauākī. We have used the wording from
the Deed of Settlement of Historical Claims between
Te Aupōuri and The
Crown dated 28 January 2012 on the basis that the Deed has been ratified by the
people of Te Aupōuri.
- 4.14 It
naturally follows that children are considered taonga (highly prized) in te ao
Māori and are regarded as the responsibility
of their entire iwi,
hapū (sub-tribe) and whānau. 21 Children literally embody the
continuation of whakapapa, which in turn signals the iwi, hapū and
whānau’s well-being.
Te reo Māori | The Māori language
- 4.15 Te
reo Māori indicates the significance of women and their ability to give
birth. There are numerous examples in whakataukī
(proverbs that, unlike
whakatauākī, cannot be traced to their original source). “He
wahine, he whenua, e ngaro
ai te tangata”, for instance, can be
translated to mean that, without women to guarantee progeny and land, the
people
will perish. 22
“Mate i te tamaiti he aurukōwhao; mate i te wahine he
takerehāia” also indicates the significance of a woman’s
ability to create future generations. It has been translated to “the death
of a child is a small matter, but the death of a
woman is a calamity”.23
- 4.16 Certain
words associated with pregnancy and childbirth also have dual meanings, which
illustrate connections between pregnancy
and childbirth and other matters of
significance in te ao Māori. Rose Pere pointed to the use of the word
whenua as meaning
both land and placenta and hapū as meaning both pregnant
and large kinship group.24
More recent scholarship also focuses on the word ūkaipō, which
can be translated to mean night feeding breast or mother.
25 The meaning of the word
ūkaipō resonates with the significance of a woman’s traditional
role in te ao Māori as
the source of
life.
Tikanga
around conception, pregnancy and childbirth
- 4.17 There are
many tikanga around conception, pregnancy and childbirth in te ao Māori.
Tā Hirini Mead describes the traditional
example of a tohunga (sage)
being enlisted to perform the whakatō tamariki (planting the seed of a
child) where couples
were having difficulty conceiving. 26 The ceremony involved
karakia associated with Hine-te-iwaiwa and Tiki (another atua Māori
(Māori deity) associated
with fertility), and at times, elements of nature
were used to awaken the power to conceive.27
- 4.18 Another way
of awakening the power to conceive was for a couple to enter a whāngai
arrangement, where they would take care
of another child to bring about
conception. If
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Pāharakeke, he Rito Whakakīkinga Whāruarua: Oranga Tamariki
Urgent Inquiry (Wai 2915, 2021) at 6.
- Rangimarie
Rose Pere Ako: Concepts and Learning in the Māori Tradition (Te
Kohanga Reo National Trust Board, Wellington, 1994) at
20.
23 Hirini Moko Mead and
Neil Grove Ngā Pēpeha a Ngā Tīpuna (Victoria
University Press, Wellington, 2001) at 286.
- Rangimarie
Rose Pere Ako: Concepts and Learning in the Māori Tradition (Te
Kohanga Reo National Trust Board, Wellington, 1994) at 13 and 19.
- See
Kirsten Aroha Linda Gabel “Poipoia te tamaiti ki te
ūkaipō” (PhD thesis, Te Whare Wānanga o Waikato
| The
University of Waikato, 2013); and Naomi Beth Simmonds “Tū te turuturu
nō Hine-te-iwaiwa: Mana wahine geographies
of birth in Aotearoa New
Zealand” (PhD thesis, Te Whare Wānanga o Waikato | The University of
Waikato, 2014). See also
HW Williams Dictionary of the Maori Language
(7th ed, Printlink, Wellington,
2016).
26 Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 323.
27 Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 323.
conception still did not occur, the couple who were not able to conceive became
whare ngaro (lost houses). 28
The term alludes to the loss of whakapapa resulting from
infertility.
- 4.19 Oriori
(lullabies, though they do not resemble the lullaby of Western culture)29 provide accounts of tribal
history and whakapapa. Traditionally, they have been composed and sung from
conception or to children from
a very young age. According to Pere:30
Many of the chants and songs
that lulled babies and children off to sleep gave detailed accounts of their
tipuna. These oriori (lullabies)
revealed both the strengths and weaknesses,
both the successes and failures of their tipuna. Children could identify very
closely
with these forebears as being “down to earth”, very ordinary
beings, capable of both error and achievement. Mythological
figures and
supernatural influences had very human characteristics and qualities about them
also, so that they become part of one’s
whakapapa.
- 4.20 While
tikanga around childbirth can vary across iwi, hapū and whānau, some
aspects are more common. For instance, the
whenua and pito (umbilical cord) of
Māori children are often returned to the land to which they are connected
by whakapapa.31 This is done
predominantly to preserve the child’s mana and mauri (life principle) and
also to reinforce the whakapapa connection
between the child and
Papatūānuku.32
According to Mead, the tikanga of the whenua and the pito is “being
revived and adapted to modern conditions and circumstances”.33
Whāngai
arrangements
- 4.21 Māori
have traditionally entered whāngai arrangements (also known as atawhai),
where a child is given to others to
raise. 34 The principles that underpin
whāngai have been described as openness, caring for the child within the
family, whakapapa and whanaungatanga
(kinship).35 It has also been suggested
that, as whāngai arrangements are premised on kinship, they rarely stray
beyond the whānau or
hapū to ensure a whakapapa connection between the
child and the birth parents is maintained.36
28 Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 323.
- Kirsten
Aroha Linda Gabel “Poipoia te tamaiti ki te ūkaipō” (PhD
thesis, Te Whare Wānanga o Waikato | The
University of Waikato, 2013) at
86–87.
- Rangimarie
Rose Pere Ako: Concepts and Learning in the Māori Tradition (Te
Kōhanga Reo National Trust Board, Wellington, 1994) at
59.
31 Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 320–321.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World Māori – Perspectives on Justice
(March 2001) at 45. See also Hirini Moko Mead Tikanga Māori: Living
by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at
320–321.
33 Hirini Moko
Mead Tikanga Māori: Living by Māori Values (rev ed, Huia
Publishers, Wellington, 2016) at 321.
- Hirini
Moko Mead Tamaiti Whāngai: The Adopted Child: Māori Customary
Practices (paper delivered at the Adoption Conference, Te Herenga Waka |
Victoria University of Wellington, 1990) as cited in Te Aka Matua o
te Ture |
Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9,
2001) at [234], n 311.
- Te
Aka Matua o te Ture | Law Commission Māori Custom and Values in New
Zealand Law (NZLC SP9, 2001) at [234]. See also Joseph Williams “He
Aha Te Tikanga Maori” (paper prepared for Te Aka Matua o te Ture
| Law
Commission (draft), 1998) at 9.
- See
the report of Te Wharehuia Milroy which forms part of the Court record referred
to in the Māori Appellate Court decision
Hohua – Estate of Tangi
Biddle or Hohua (2001) 10 Rotorua Appellate MB 43 (10 APRO
43).
- 4.22 Whāngai
arrangements are used for a variety of reasons, and tikanga relating to
whāngai varies among iwi.37
For instance, a whāngai arrangement could be entered into due to
infertility, as mentioned above, as a means of strengthening
relations within
hapū or iwi38 or to instil cultural
knowledge in a child.39
Whanaungatanga
- 4.23 Whanaungatanga
is a fundamental value that informs tikanga Māori. According to Pere:40
Whanaungatanga is based on
the principle of both sexes and all generations supporting and working alongside
each other. Families are
expected to interact on a positive basis with other
families in the community to help strengthen the whole. Families receive
sustenance
... when they feel they have an important contribution to make to the
community they live in.
- 4.24 Tā
Joseph Williams has also written that:41
At iwi, hapū and whanau
level, whanaungatanga operates like a magnet, emphasising commonality of
whakapapa and interconnectedness
while down playing the separation between
groups. It is accordingly extremely difficult to exclude individuals from
collective membership
because of the pervasiveness of the whanaungatanga
ethic.
- 4.25 It follows
that the collective is naturally considered significant in te ao Māori, and
many Māori consider that consultation
with hapū and whānau is
required in decision making, particularly on matters of
significance.
MĀORI PERSPECTIVES ON SURROGACY
- 4.26 In
this section, we consider what may influence Māori perspectives on
surrogacy, drawing on our research and engagement
with individuals who have
shared an ao Māori perspective on surrogacy.
- 4.27 While
Māori perspectives on surrogacy may vary, our initial research and
engagement suggests that Māori are generally
positive about the practice,
particularly as a means of continuing whakapapa in response to infertility
(whether physical or social).
One kuia we spoke with said “the main thing
is the tamariki ... it does not matter how they get here”.
- 4.28 However, we
note that there are few studies that explore Māori perspectives on
surrogacy and other forms of assisted reproductive
technology. The Ethics
Committee on Assisted Reproductive Technology (ECART) has noted this issue and
suggested that
- Father
Henare Tate provided this advice at a meeting with Tāhū o te Ture |
Ministry of Justice Māori Focus Group as
part of Te Aka Matua o te Ture |
Law Commission’s consultation during its review of adoption laws in
1999–2000.
- See
Te Aka Matua o te Ture I Law Commission Adoption and Its Alternatives: A
Different Approach and a New Framework (NZLC R65, 2000) at [181]. See
also the affidavit of Ngapare Hopa, which forms part of the Court record
referred to in the Māori
Land Court decision Karauti – Succession
to George or Hori Kiwa Tukua (2000) 116 Otorohanga MB 81 (116 OT
81).
- See
Te Aka Matua o te Ture I Law Commission New Issues in Legal Parenthood: A
discussion paper (NZLC PP54, 2004) at [2.24].
- Rangimarie
Mihomiho Rose Pere “To Us the Dreamers are Important” in Leonie
Pihama and others (eds) Mana Wahine Reader: A Collection of Writings
1987-1998 – Volume 1 (Te Kotahi Research Institute, Hamilton, 2019) 4
at 11.
- Joseph
Williams “He Aha Te Tikanga Maori” (paper prepared for Te Aka Matua
o te Ture | Law Commission (draft), 1998) at
11.
consideration be given to funding publicly available research with a view to
better understand ao Māori perspectives on surrogacy.42
Precedents
for surrogacy in te ao Māori
- 4.29 According
to Mead, events in Māori tradition can help frame a Māori response to
a new matter,43 and there
appears to be some precedent for surrogacy in te ao Māori.
- 4.30 One
Māori academic who shared an ao Māori perspective on surrogacy
described to us an ancient form of surrogacy used
in pre-colonial times called
whakawhiti kaimoana (the propagation of seafood). This practice involved using
pōhā (Macrocystis pyrifera or giant kelp) to transport and
propagate live seafood such as shellfish, starfish and pāua to neighbouring
cockle beds that
were struggling with growth and reproduction.44
- 4.31 We were
also told about an instance of traditional surrogacy involving a woman of
significant mana from Ngāti Kahungunu,
Niniwa-i-te-rangi (sometimes known
as Niniwa Heremaia). Niniwa was unable to bear children of her own, so her
husband had natural
intercourse with other women, and Niniwa raised the
children. We were told by other Māori academics that this type of
arrangement was not unique, and a similar approach was taken at various marae
around Aotearoa New Zealand.
- 4.32 Our
preliminary research and engagement also tended to support the view that
surrogacy is considered by some Māori to be
very similar to a whāngai
arrangement. One Māori academic said “surrogacy arrangements could be
considered as another
form of whāngai, as the principles are the
same”. A respondent to a questionnaire on Māori attitudes to assisted
human reproduction in 2008 also said:45
“Why should it be any
different from whāngai?” And since whāngai is acceptable,
“why shouldn’t surrogacy
be acceptable?”
Māori openness
to and acceptance of takatāpui
- 4.33 Māori
have long been open about and accepting of gender and sexual diversity. This is
evident in te reo Māori, particularly
in the word takatāpui, which
pre-dates the arrival of Europeans in Aotearoa New Zealand and was translated in
1871 to mean “intimate
companion of the same sex”.46
- 4.34 Ngā
kōrero tuku iho also detail the relationships of Māori ancestors in
same-sex relationships. For instance,
Tūtānekai had a close male
companion, Tiki, who he openly
- Letter
from Ethics Committee on Assisted Reproductive Technology to Te Aka Matua o te
Ture | Law Commission regarding initial views
on surrogacy review (7 July
2021).
43 Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 375.
- See
Karaitiana Taiuru “Te Rūnaka o Koukourarata: Genetics/DNA
Position/Discussion Paper” (paper presented to SING
2021 ki Ōtautahi
ki Rehua Marae).
- Marewa
Glover Māori Attitudes to Assisted Human Reproduction: An Exploratory
Study (School of Population Health, Te Whare Wānanga o Tāmati
Makaurau | University of Auckland, 2008) at [3.7.15].
- HW
Williams Dictionary of the Maori Language (3rd ed, Government Print,
Wellington, 1871) at 147 as cited in Elizabeth Kerekere “Part of the
Whānau: The Emergence of
Takatāpui Identity – He Whāriki
Takatāpui” (PhD Dissertation, Te Herenga Waka I Victoria University
of
Wellington, 2017) at 17, n 2.
saw as his takatāpui.47
Further evidence of celebration and acceptance of takatāpui can also
be found in traditional whakairo (carvings), waiata (song)
and
karakia.
- 4.35 A recent
example suggests Māori continue to be supportive of sexual diversity,
including in the context of takatāpui
having children by surrogacy. In June
2017, a male couple (one Australian and one Māori New Zealander) living in
Australia advertised
for a Māori ovum donor so that the couple could father
multiple children with the same Māori genetics.48 In response to that
advertisement, 60 Māori women reportedly offered to donate their ova, and a
surrogate gave birth to the couple’s
first child in June last year.49
Māori
engagement with te ao Māori
- 4.36 Perspectives
on surrogacy may be influenced by the extent to which Māori engage with te
ao Māori. As one Māori
academic explained to
us:
Māori are diverse. A person with whakapapa may have no
access to the idealistic te ao Māori ... They are no less Māori,
and
their whakapapa is no less tapu than any other Māori.
Interpretation of
tikanga principles engaged in surrogacy will vary, and perspectives will shift
over time
- 4.37 We have not
attempted to assess what and how specific tikanga principles such as tapu
(sacredness), noa (freedom from restrictions)
and mauri (life principle) might
be engaged or interpreted in surrogacy, as perspectives are likely to vary
between iwi, hapū
and whānau and among Māori as individuals. Pere
also observed that:50
An
over-simplification of the diversity of Maori institutions not only produces the
errors inherent in averages but disregards the
vivacity of the Maori people
themselves. Their lives and institutions were far from static and consistent
before the arrival of the
Pakeha, and have certainly not been so since.
- 4.38 Consistent
with Pere’s view, the Commission has emphasised that tikanga is dynamic
and has evolved over time to adapt to
and accommodate developments in society
and technology.51
Accordingly, while some Māori may consider surrogacy to be
inconsistent with certain tikanga principles, other Māori may
just as
readily support the practice and establish ways to utilise it in accordance with
their own tikanga. Tikanga around conception,
pregnancy and childbirth may also
be adapted for the surrogacy context, including to take into account the unique
role of a surrogate.
- 4.39 We are also
conscious that Māori perspectives can shift over time. We heard from
Professor Marewa Glover, a Māori academic
who conducted the study in 2008
on Māori attitudes to assisted human reproduction, who told
us:
- Ngahuia
Te Awekotuku “He Reka Anō: Same sex lust and loving in the ancient
Māori world” in Alison J Laurie and
Linda Evans (eds) Outlines:
Lesbian and gay histories of Aotearoa (Lesbian & Gay Archives of New
Zealand, Wellington, 2005) 6 at 8.
- Katarina
Williams “Gay couple in Australia seeking Māori woman’s donor
eggs” Stuff (online ed, New Zealand, 4 July 2017).
- Katarina
Williams “Same sex couple’s baby joy following Māori egg donor
classified ad” Stuff (online ed, New Zealand, 3 June 2020).
- Rangimarie
Mihomiho Rose Pere “To Us the Dreamers are Important” in Leonie
Pihama and others (eds) Mana Wahine Reader: A Collection of Writings
1987-1998 – Volume 1 (Te Kotahi Research Institute, Hamilton, 2019) 4
at 7.
51 Te Aka Matua o te
Ture I Law Commission Māori Custom and Values in New Zealand Law
(NZLC SP9, 2001) at 2–6.
I recall one kaumātua who I interviewed [in 2008] said that
attitudes would change with time. The more Māori who utilised
assisted
human reproduction, the more general knowledge and acceptance of the technology
there would be within the Māori community.
Summary of our approach
- 4.40 It is not
appropriate for us to make recommendations for reform that attempt to direct the
behaviour of Māori or influence
tikanga Māori in the surrogacy
context, particularly given the variation in the extent to which Māori
engage with te ao
Māori and the potential for different interpretations of
tikanga and shifting perspectives. Rather, we consider that our recommendations
should enable Māori to act in accordance with tikanga in a surrogacy
arrangement should they wish to do so and promote responsible
kāwanatanga
that facilitates tino rangatiratanga under the Treaty.
MATTERS THAT MAY BE OF PARTICULAR CONCERN TO MĀORI IN
SURROGACY PRACTICE, LAW AND REGULATION
- 4.41 In
this section, we consider matters that may be of particular concern to
Māori in surrogacy practice, law and regulation,
drawing on our research
and engagement with individuals who shared an ao Māori perspective on
surrogacy.
Access to
surrogacy
- 4.42 While
Māori may be generally positive about surrogacy, the most recent available
data suggests Māori participation
in surrogacy arrangements is low, and
Māori women are more likely to act as surrogates than as intended parents.
A study of
104 applications reviewed by ECART from September 2005 up until the
end of 2010 found that only nine per cent of applications involved
a Māori
surrogate, and only two per cent of applications involved a Māori intended
mother. Of all 104 women willing to
be surrogates, seven per cent had partners
who were Māori. Of all intended mothers, two per cent had partners who were
Māori.52
- 4.43 Annabel
Ahuriri-Driscoll has observed that, while the exact reasons for low
participation of Māori in surrogacy arrangements
are unknown, causes may
include:53
(a) the high
fertility rates of Māori (historically) reducing the need for
surrogacy;
(b) the customary practice of whāngai being the preferred option;
(c) the difficulty involved with finding a surrogate; and
(d) the cost of in vitro fertilisation required for gestational surrogacy
arrangements inhibiting Māori from participating as
intended parents.
- 4.44 Concerns
regarding equity of access and cost were also raised with us during initial
consultation by ECART and by one fertility
clinic, which considered the cost of
in vitro
- Lynley
Anderson, Jeanne Snelling and Huia Tomlins-Jahnke “The practice of
surrogacy in New Zealand” (2012) 52 Australian
and New Zealand Journal of
Obstetrics and Gynaecology 253 at 256. In the 2006 Census, Māori made up
approximately 14.6 per cent
of the population of Aotearoa New Zealand.
- Annabel
Ahuriri-Driscoll “Adoption and surrogacy – Māori
perspectives” (seminar presented to Redefining Family
Conference –
Growing families through adoption, donor-conception and surrogacy, Te
Wānanga Aronui o Tāmaki Makau
Rau | Auckland University of Technology,
13–14 January 2016) (unpublished informal notes to accompany
presentation).
fertilisation limited Māori and Pacific peoples’ access to surrogacy.
A Māori academic also suggested to us that
the body mass index requirements
for public funding for surrogacy discriminated against Māori and Pacific
peoples.
- 4.45 We are
interested in your views on whether the difficulty involved with finding a
surrogate and the cost of gestational surrogacy
arrangements are reasons for
limited uptake of surrogacy by Māori and whether there are any other
matters limiting access that
could be addressed through law reform.
- 4.46 We are also
interested in whether the proposals we have suggested throughout this Issues
Paper to both reduce barriers for women
considering becoming surrogates and the
cost of surrogacy in Aotearoa New Zealand are sufficient to address uptake of
surrogacy by
Māori. These proposals include options
to:
(a) reduce barriers for women considering becoming surrogates
by:
(i) allowing surrogates to be reimbursed for reasonable expenses they incur
in relation to a surrogacy arrangement and ensuring they
are entitled to a
period of paid employment leave on the same basis as paid parental leave
(Chapter 6);
(ii) providing greater clarity and certainty about the parental rights and
responsibilities of surrogates and intended parents (Chapter
7);
(iii) raising public awareness of surrogacy and allowing intended parents to
advertise for lawful surrogacy arrangements (Chapter
10) – we also
consider whether establishing a surrogacy register to facilitate surrogacy
arrangements or permitting private
intermediaries to operate in Aotearoa New
Zealand would be appropriate; and
(b) reduce the cost of surrogacy by:
(i) eliminating the need for a post-birth court process to establish legal
parenthood if certain conditions are met (Chapter 7);
(ii) recommending the Government review how it funds surrogacy, including
surrogacy-related fertility treatment as well as the costs
associated with the
ECART process (Chapter 10).
- 4.47 Under the
Treaty and the principles of partnership, active protection and equity, the
Crown has an obligation to ensure equitable
outcomes for Māori,
particularly where disparities in outcomes exist. We are interested in your
views so our recommendations
can address these
obligations.
Acting
in accordance with tikanga
- 4.48 Our initial
research and engagement has raised a question about whether Māori are
enabled by surrogacy law and regulation
to act in accordance with tikanga. While
we acknowledge many Māori may be able to act in accordance with their own
tikanga independently,
we want to ensure Māori are also facilitated to
do so by surrogacy law and regulation, if required.
- 4.49 A principle
of the Human Assisted Reproductive Technology Act 2004 (HART Act) is that
“the needs, values, and beliefs of
Māori should be considered and
treated with respect” by all people exercising powers or functions under
the legislation.54
- 4.50 Under
guidelines issued by the Advisory Committee on Assisted Reproductive
Technology (ACART), people involved in
surrogacy arrangements with the
assistance of a fertility clinic must attend counselling that is
“culturally appropriate”.55 ECART (which considers
applications for approvals for the performance of assisted reproductive
procedures) must also be satisfied
that counselling “has provided for
whānau and extended family involvement.”56
- 4.51 As we
outlined at the start of this chapter, surrogacy engages many aspects of te ao
Māori, particularly around the significance
of women and their ability to
give birth. The tikanga value of whanaungatanga also means whānau and
extended family (including
hapū) may need to be involved in decision making
in a surrogacy arrangement. This could be considered particularly important
in
the surrogacy context as the whakapapa of a whānau and hapū will be
continued through a Māori child born from a
surrogacy arrangement.
- 4.52 It is not
clear whether the HART Act principle and the ACART Guidelines are currently
meeting the needs of Māori who wish
to engage with and act in accordance
with tikanga in a surrogacy arrangement.
- 4.53 We are
interested in your views on whether this is a matter of concern for Māori
and whether further steps should be taken
to improve the current position.
Options include:
(a) requiring counsellors of participants in
surrogacy arrangements involving Māori who wish to act in accordance with
tikanga
to have expertise in Māori customary values and the ability to
articulate issues from a Māori perspective;
(b) where Māori do not feel that they have sufficient knowledge within
their own whānau or hapū to act in accordance
with tikanga, requiring
counsellors to engage local kaumātua and hapū for cultural support;
and
(c) conducting further research to better understand ao Māori
perspectives on surrogacy and developing guidelines57 to assist ECART and others
exercising powers or functions under the legislation.
- 4.54 We think
these options may help ensure Māori are able to act in accordance with
tikanga if they wish to as well as promote
responsible kāwanatanga that
facilitates tino rangatiratanga. The Treaty and the principles of partnership,
active protection
and options place an obligation on the Crown to ensure health
services are culturally
54 Human Assisted
Reproductive Technology Act 2004, s 4(f).
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [B3].
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [B4].
- Research
and the development of guidelines could be conducted in accordance with, and
complement, Pūtaiora Writing Group Te Ara Tika – Guidelines for
Māori research ethics: A framework for researchers and ethics committee
members (Health Research Council of New Zealand,
2010).
appropriate and kaupapa Māori solutions are available to Māori in a
way that they are not disadvantaged by their
choices.
Whakapapa
Access to information
- 4.55 As
we outlined at the start of this chapter, whakapapa is at the core of cosmic
creation in te ao Māori and permeates
Māori society. It is what
connects children to their parents, to their ancestors and to the spiritual
world.58
- 4.56 The quest
of Māui to find and seek acceptance from his parents and siblings after
being raised by Tangaroa59
illustrates how important knowledge of whakapapa can be to a Māori
person because it shows how identity can be impacted as a
result of being born
in unique circumstances. Ensuring the identity of a surrogate-born child is
nurtured and protected is likely
to be significant for Māori, and any risk
of a Māori child not being able to access their whakapapa is likely to be a
matter
of concern.
- 4.57 According
to Pere:60
Genealogy,
whakapapa, is an important part of whanaungatanga. It is the basic right of the
child to know who is his or her natural
parents are even if he or she is adopted
out. The spirit of the child amongst other dimensions begins from conception
and relates
to the child’s forebears. A basic belief of the Maori is to
expose a child to his or her kinship groups as soon as possible
and throughout
his or her lifetime.
- 4.58 This
perspective was shared by others we spoke with:
(a) One kuia who
shared an ao Māori perspective was pragmatic about surrogacy but considered
that access to information was important.
In her view:
The only thing is that they should be able to access information about their
parentage if they so wish. They may need it ... to learn
about their whakapapa,
which is paramount in te ao Māori.
(b) One intended parent we spoke with during initial consultation said:
You need to know where you come from, who your parents are and who connects
you to your cousins. If you are going to have a child
together, that is really
important. The trauma that comes from not knowing, I don’t know if you can
come back from that ...
it echoes across your life.
- 4.59 Whakapapa
is also becoming increasingly important for Māori to gain access to
entitlements under state law. As the Commission
observed in 2000:61
Māori who are not aware
that they are Māori cannot exercise the right to enrol on the Māori
electoral roll. Similarly,
young persons who have no knowledge of their
whakapapa may
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Pāharakeke, he Rito Whakakīkinga Whāruarua: Oranga Tamariki
Urgent Inquiry (Wai 2915, 2021) at 14–15.
- Kirsten
Aroha Linda Gabel “Poipoia te tamaiti ki te ūkaipō” (PhD
thesis, Te Whare Wānanga o Waikato | The
University of Waikato, 2013) at
63–64.
- Rangimarie
Mihomiho Rose Pere “To Us the Dreamers are Important” in Leonie
Pihama and others (eds) Mana Wahine Reader: A Collection of Writings
1987-1998 – Volume 1 (Te Kotahi Research Institute, Hamilton, 2019) 4
at 11.
61 Te Aka Matua o te
Ture I Law Commission Adoption and Its Alternatives: A Different Approach and
a New Framework
(NZLC R65, 2000) at [203].
find it difficult to access scholarships available for
descendants of a particular iwi. Entitlement to Māori land and other
resources
is dependent on the ability to establish whakapapa links or a
whāngai placement.
- 4.60 In the
post-Treaty settlement context, Māori may also be unable to register as
members of post-settlement governance entities
representing their iwi or
hapū (in order to benefit from settlements received from the Crown for
breaches of the Treaty) if
they do not know their whakapapa.62
- 4.61 Under the
HART Act, where a person of Māori descent donates ova or sperm to a
fertility clinic, the fertility clinic must
record the donor’s
whānau, hapū and iwi to the extent the donor is aware of those
affiliations.63 This is so
the information can be accessed by the child after they turn 18 or by their
guardian if the child is under 18.64 However, as we explain in
Chapter 8, this information has only been collected since the HART Act came into
force in August 2005 and
can be withheld if it is “likely to endanger any
person”. 65 These
requirements do not extend to private donations, donations that take place
through an overseas clinic or information about the
surrogate (which means her
information is not captured if her ova are not used in conception). Accordingly,
circumstances may arise
where a Māori surrogate-born child is unable to
access information about their whakapapa or knowledge of who carried them.
- 4.62 We asked
some Māori academics what they thought about the HART Act provisions, and
they were particularly concerned about
the risk of Māori surrogate-born
children not being able to access information about their whakapapa. One said
“the law
is incorrect if an outcome of it is that a person cannot know
their whakapapa”. Another said:
It is never appropriate for
the law to operate to prohibit a Māori person accessing their own
whakapapa. I would suggest this
is a direct breach of te Tiriti, denying a
Māori person access to their taonga, whakapapa.
- 4.63 We agree.
We also acknowledge that many Māori who enter into surrogacy arrangements
are likely to disclose information regarding
whakapapa to surrogate-born
Māori children, given the significance of whakapapa in te ao Māori,
without needing to rely
on the HART Act. However, we consider that the law must
also facilitate access to information regarding whakapapa, if required.
- 4.64 Our
preliminary view is that this matter is addressed by the options for reform put
forward in Chapter 8 that seek to ensure
information about a surrogate-born
child’s genetic and gestational origins is collected and recorded by the
state and is available
to them except in very narrow circumstances. This would
mean it would be very rare for a Māori surrogate-born child not to be
able
to access information about their whakapapa.
- 4.65 We are
interested in your views on whether our options for reform in Chapter 8 are
sufficient to address this issue for Māori.
62 See, for example, Trust
Deed for Ngāti Whātua Ōrākei Trust (Post-Settlement
Governance Entity) (2011) at 45–47.
63 Human Assisted Reproductive
Technology Act 2004, s 47(1)(h).
64 Human Assisted Reproductive
Technology Act 2004, s 50(3).
- Human
Assisted Reproductive Technology Act 2004, s 50(4). We are not aware of any
information being withheld under the section.
Allocation of legal parenthood
- 4.66 In
te ao Māori, genetics determine a person’s whakapapa. The way legal
parenthood is currently allocated may be a
matter of concern to Māori due
to its implications for whakapapa under state law. This is
because:
(a) when a child is born as a result of a surrogacy
arrangement, the surrogate and her partner (if she has one) are the
child’s
legal parents at birth66 and are recorded as the
child’s parents on the birth certificate, even if the intended parents or
donors provided their ovum
and/or sperm in conception; and
(b) if intended parents adopt a surrogate-born child, they will become the
child’s legal parents 67
and will be recorded as the child’s parents on a newly issued birth
certificate, even if the intended parents are not the child’s
genetic
parents.
- 4.67 Accordingly,
there may be situations where a surrogate-born Māori child’s legal
parents and birth certificate do not
reflect their true whakapapa. We emphasise
that we do not think whakapapa can be affected in this way in te ao Māori.
As participants
at hui held by the Commission around Aotearoa New Zealand in
relation to its review of adoption laws in 1995 and 1996 argued:68
... no law can break the
links of blood in Māori tradition, so although the Adoption Act alters
familial relationships in law,
it does not necessarily do so in fact, as
Māori children adopted within Māori families know their family
connections and
relationships.
- 4.68 That said,
we are concerned that situations may arise where whakapapa is relevant under
state law and surrogate-born Māori
children may be unable to rely on their
true whakapapa or may rely on inaccurate whakapapa due to the way legal
parenthood has been
allocated. For example, a surrogate-born Māori child
adopted by intended parents who did not provide their ovum or sperm in
conception and do not have the same whakapapa will have legal parents and a
birth certificate that do not accurately reflect their
whakapapa. As a result,
the child may be unable to register as a member of the post- settlement
governance entity representing that
child’s hapū or iwi.
- 4.69 Our
preliminary view is that we do not think state law should affect a
person’s whakapapa in this way. Māori academics
we engaged with
unanimously agreed. One said “the law needs to be changed to stop
this”.
- 4.70 Accordingly,
our preliminary proposal is that surrogacy law needs to include an explicit
provision which clarifies that the whakapapa
of a surrogate-born Māori
child is not affected by the allocation of legal parenthood. This would ensure
surrogate-born Māori
children are able to rely on their real whakapapa in
both te ao Māori and in matters where their whakapapa is relevant under
state law.
- 4.71 We also
note that there are other circumstances such as adoption other than in the
context of surrogacy where there are similar
implications for a Māori
child’s whakapapa
- Status
of Children Act 1969, ss 17–22. The surrogate’s partner will not be
a legal parent if there is evidence that establishes
that they did not consent
to the procedure: ss 18 and
27.
67 Adoption Act 1955, s
16.
68 Te Aka Matua o te Ture I Law
Commission Adoption and Its Alternatives: A Different Approach and a New
Framework
(NZLC R65, 2000) at [196] (citation omitted).
under state law. These circumstances are beyond the scope of our review.
However, Tāhū o te Ture | Ministry of Justice
is currently reviewing
adoption laws, and this review includes considering how adoption laws can
reflect tikanga Māori.69
Whāngai
– ensuring mātua whāngai and tamariki whāngai are not
disadvantaged
- 4.72 Some
Māori intended parents may choose to proceed with a whāngai
arrangement following surrogacy instead of adopting
the child or seeking a
guardianship or parenting order. 70
ECART appears reluctant to approve these types of arrangements, citing
concerns “for the child due to the instability of the
proposed legal
situation”71 and that
adoption checks “ensure that the resulting child will go into a safe
environment”.72
- 4.73 Under the
Adoption Act 1955, “no adoption in accordance with Māori custom shall
be of any force or effect”.
73 Accordingly, intended parents
who do not proceed with an adoption and choose to be mātua
whāngai (whāngai parents)
instead will not be the legal parents of a
child born by surrogacy. The surrogate and their partner (if they have one)
will
remain the child’s legal parents. Mātua whāngai will care
for the child informally, without any legally recognised
parental rights or
responsibilities.
- 4.74 In Chapter
7, we outline the limitations of this approach in relation to the rights and
entitlements that flow from the legal
parent-child relationship, including
rights and entitlements to a parent’s estate under succession law,74 child support obligations and
citizenship. These limitations apply whether or not mātua whāngai
obtain a guardianship or
parenting order. In addition, if the intended parents
are caring for their child informally, they cannot consent to medical treatment
for the child or apply for a passport on behalf of the child.75
- 4.75 Tāhū
o te Ture | Ministry of Justice’s review of adoption laws considers how
the law treats whāngai.76
We are, however, interested in views on whether the lack of legal
recognition of whāngai arrangements is a matter of particular
concern to
Māori in the surrogacy context.
- 4.76 If the
legal status of whāngai arrangements in the surrogacy context is a matter
of concern to Māori, an option for
reform could be to recognise
whāngai arrangements under state law in order to ensure mātua
whāngai have the same or
similar parental rights
69 Tāhū o te
Ture | Ministry of Justice Adoption in Aotearoa New Zealand: Discussion
document (June 2021) at 6.
70 Ethics Committee on Assisted
Reproductive Technology minutes of 29 November 2005 at [3] (application
2005/08);
14 March 2006 at [15] (application 2005/08); 2 November 2018 at [6]
(application E18/108); 4 July 2019 at [12] (application E18/108);
and 11
February 2021 (application E18/108).
71 Ethics Committee on Assisted
Reproductive Technology minutes of 29 November 2005 at [3] (application
2005/08).
72 Ethics Committee on Assisted
Reproductive Technology minutes of 26 April 2018 (Correspondence).
73 Adoption Act 1955, s 19.
- We
note that a review of aspects of the law governing succession is currently being
undertaken by Te Aka Matua o Te Ture | Law Commission:
Review of Succession
Law: Rights to a person’s property on death | He arotake i te
āheinga ki ngā rawa a te tangata ka mate ana (NZLC IP46,
2021).
75 Care of Children Act
2004, s 36(3); and Passports Act 1992, s 4(3)(a).
76 Tāhū o te Ture | Ministry
of Justice Adoption in Aotearoa New Zealand: Discussion document (June
2021) at 28–29.
or responsibilities as other parents or guardians.77 If this option were desired
by Māori, it would require careful consideration, particularly given the
scope of our review
is limited to surrogacy and the implications that legal
recognition of whāngai arrangements could have on other areas of
state
law. Recognition would also need to be carefully designed to ensure
Māori are still able to act in accordance with
their own
tikanga.
Māori
representation on ECART and ACART
- 4.77 Another
matter of potential concern to Māori is representation on ECART and
ACART.
- 4.78 Under the
HART Act, ACART must include one or more Māori members “with
expertise in Māori customary values
and the ability to articulate issues
from a Māori perspective”.78
Under ACART’s terms of reference, all members of the committee are also
“expected to have an understanding of how the
health sector responds to
Māori issues and their application to ethical review”.
- 4.79 There is no
requirement under the HART Act for Māori representation on ECART. However,
ECART’s terms of reference
state that the committee shall have at least
two Māori members who should have a recognised awareness of te reo
Māori and
an understanding of tikanga Māori. Similar to ACART, all
members of ECART are also “expected to have an understanding
of how the
health sector responds to Māori issues and their application to ethical
review”.
- 4.80 Māori
members of ACART and ECART are appointed by the Minister of Health. Māori
representation on ACART and ECART currently
meets the requirements of the terms
of reference of each committee.
- 4.81 We are
interested in views on whether the current requirements for Māori
representation on ACART and ECART are sufficient
and promote consistency with
the Treaty and the principle of partnership.
- 4.82 One
Māori academic who shared an ao Māori perspective on surrogacy said
“[o]ne Māori person [on ACART] cannot
represent the diversity of
Māori views and perspectives that exist”. In contrast, another
Māori academic said:
... one Māori member [of ACART] is
suitable due to the small size of the committee and the vast aspects of society
that are not
represented including Asian, Indian and LGBTQ communities.
- 4.83 If
Māori do think there is need for improved Māori representation on
ACART and ECART, options for reform could include:
(a) requiring an
additional Māori member of ACART;
(b) requiring the Māori member of ACART be appointed as co-chair and
removing the position of deputy chair – this was suggested
by one of the
Māori academics who shared an ao Māori perspective on surrogacy;
(c) requiring that one Māori member of ECART is appointed as co-chair
and removing the position of deputy chair; and
- This
option would require careful consideration of whether and how the rights and
entitlements flowing from the legal parent-child
relationship would be
maintained between tamariki whāngai and their birth parents, particularly
in matters of
succession.
78 Human Assisted
Reproductive Technology Act 2004, s 34(4)(d).
(d) affirming in legislation that
ECART’s membership must include at least two Māori members at all
times.
QUESTIONS
Another matter we have considered is who should appoint the Māori
members of ACART and ECART. These members are currently appointed
by the
Minister of Health, though the new Māori Health Authority (once
established) could play a role.79
We are interested in your views on whether this would be appropriate as
well as the options listed above.
|
|
Q2
|
Do you have any views on the matters of particular concern to Māori we
have
|
identified?
|
Q3
|
Do you think our proposals to address access to surrogacy elsewhere in this
Issues
|
Paper adequately address access to surrogacy by Māori?
|
Q4
|
Do you agree that surrogacy law and regulation should enable Māori to
act in
|
accordance with tikanga if they wish to do so? If so, do you think any of
the options for reform we have identified, or any other
option, should be
adopted to improve the current position?
|
Q5
|
Do you think that the options for reform in Chapter 8 to ensure information
about
|
a surrogate-born child’s genetic and gestational origins is collected
and recorded
by the state are sufficient to enable surrogate-born Māori children to
access information about their whakapapa?
|
Q6
|
Do you agree that the law should clarify that a Māori child’s
whakapapa is not
|
affected by the allocation of legal parenthood in a surrogacy
arrangement?
|
Q7
|
Do you think the lack of legal recognition of whāngai arrangements is
a particular
|
matter of concern in the surrogacy context?
|
Q8
|
Do you think
|
that Māori representation on ACART and/or ECART should be
|
improved?
|
- The
establishment of a Māori Health Authority was announced by the Minister and
Associate Minister of Health on 21 April 2021
following the Health and
Disability System Review. It is envisaged that the Māori Health Authority
will have the power to directly
commission health services for Māori and to
partner with Health NZ in other aspects of the health system: Andrew Little and
Peeni Henare “Building a New Zealand Health Service that works for all New
Zealanders” (21 April 2021) <www.beehive.govt.nz>.
CHAPTER 5
Approving
surrogacy arrangements
IN THIS CHAPTER, WE CONSIDER:
- the requirement
for prior approval of surrogacy arrangements in Aotearoa New Zealand; and
- issues with the
current law and options for reform.
THE CURRENT LAW
- 5.1 Surrogacy
arrangements are regulated by the Human Assisted Reproductive Technology Act
2004 (HART Act), which:
(a) establishes the legality of surrogacy
arrangements; and
(b) requires gestational surrogacy arrangements to receive prior
approval.
Legality of
surrogacy arrangements
- 5.2 Section 14
of the HART Act addresses the legality of surrogacy arrangements.1 It provides that a surrogacy
arrangement “is not of itself illegal, but is not enforceable by or
against any person”.2
- 5.3 Any exchange
of “valuable consideration” for a person’s participation in a
surrogacy arrangement is prohibited,
although the HART Act does permit payments
in relation to medical costs, counselling and legal advice. 3 We consider this prohibition
further in Chapter 6.
- A
surrogacy arrangement is defined as “an arrangement under which a woman
agrees to become pregnant for the purpose of surrendering
custody of a child
born as a result of the pregnancy”: Human Assisted Reproductive Technology
Act 2004, s 5 (definition of
“surrogacy
arrangement”).
2 Human
Assisted Reproductive Technology Act 2004, s 14(1).
3 Human Assisted Reproductive
Technology Act 2004, ss 14(3)–14(4).
- 5.4 The HART Act
also prohibits advertising that invites people to participate in, or to enquire
about opportunities for participating
in, a surrogacy arrangement that involves
the exchange of valuable consideration.4 We consider advertising in
Chapter 10.
- 5.5 The
provisions of the HART Act have the effect of prohibiting commercial surrogacy
in Aotearoa New Zealand but not overseas.
5 We consider international
surrogacy in Chapter
9.
Requirement
for prior approval of gestational surrogacy arrangements
- 5.6 The HART Act
requires all “assisted reproductive procedures”, apart from
procedures classified as “established
procedures”, to obtain prior
approval in writing from the Ethics Committee on Assisted Reproductive
Technology (ECART).6
- 5.7 Surrogacy is
not defined as an assisted reproductive procedure. However, because gestational
surrogacy arrangements involve the
use of an assisted reproductive procedure (in
vitro fertilisation), they will usually require ECART approval.7
- 5.8 Traditional
surrogacy arrangements only involve the use of an established procedure
(artificial insemination) and therefore do
not require ECART approval. 8 Traditional surrogacy
arrangements can take place privately, outside a fertility clinic. If a
fertility clinic is involved in a traditional
surrogacy arrangement, it can
request an ethical review by ECART, but this is not required and ECART can only
provide non-binding
ethical advice.9
- 5.9 The
legislative history to the HART Act reveals little discussion around requiring
ECART approval in surrogacy arrangements.10 However, the HART Act was
a response to an earlier Ministerial Committee report that did consider the
regulation of surrogacy
and “envision[ed] ethical approval being given
under strict guidelines”.11
4 Human Assisted
Reproductive Technology Act 2004, s 15(1).
- As
reflected in the heading of s 14: “Status of surrogacy arrangements and
prohibition of commercial surrogacy arrangements”;
and as interepreted by
the Family Court in Re an application to adopt a child by SCR and MCR
[2012] NZFC 5466 at [59].
- Human
Assisted Reproductive Technology Act 2004, ss 5 (definition of
“assisted reproductive procedure or procedure”)
and 16. This
excludes actions that are prohibited under the Act. Prohibited actions must
not be conducted at any time: s 8
and sch 1.
- In
vitro fertilisation is considered an established procedure in certain
circumstances but not if it involves the use of a donated
ovum in conjunction
with donated sperm: Human Assisted Reproductive Technology Order 2005 (HART
Order), schedule pt 2 cl 1(b). For
the purposes of the HART Order, in a
surrogacy arrangement the surrogate is the “patient” because they
are “the
person who is the subject of the procedure”: cl 3
(definition of “patient”). This means that the intended
parents’
ovum and sperm are “donated”, as they do not come
from either the surrogate or the surrogate’s partner: cl 3 (definitions
of
“donated eggs” and “donated
sperm”).
8 Human
Assisted Reproductive Technology Order 2005, schedule pt 1.
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at 10. See, for example, Ethics
Committee on Assisted Reproductive Technology minutes of 9 May 2019 at [7] and
[13]
(applications E19/24 and
E19/30).
10 Debra Wilson
“Surrogacy in New Zealand” [2016] NZLJ 401 at 401–402.
- Ministerial
Committee on Assisted Reproductive Technologies Assisted Human Reproduction:
Navigating our Future (July 1994) at 114. Bill Atkin has noted that
“[m]uch of the Ministerial Committee’s thinking is reflected in the
legislation
finally passed in 2004”: Bill Atkin “Regulation of
Assisted Human Reproduction: The Recent New Zealand Model in Comparison
with
Other Systems” (2004) 11 RJP/NZACL Yearbook 81 at
83.
ECART’s composition and role
- 5.10 ECART
is a committee designated by the Minister of Health. 12 ECART comprises of members
with expertise in assisted reproductive procedures, human reproductive
research, ethics and law, as
well as members with the ability to articulate
issues from a consumer perspective and a disability perspective.13
- 5.11 At least
two ECART members must be Māori, with “a recognised awareness of te
reo Māori, and an understanding
of tikanga Māori”.14 All ECART members “are
expected to have an understanding of how the health sector responds to
Māori issues and their application
to ethical review”.15
- 5.12 ECART’s
functions include considering and determining applications for approvals for the
performance of assisted reproductive
procedures and for keeping prior approvals
under review.16 When
performing these functions, ECART must operate:17
(a) in accordance with
guidelines issued by the Advisory Committee on Assisted Reproductive Technology
(ACART);18 and
(b) “expeditiously, having regard, in particular, to the effect that
undue delay may have on the reproductive capacity of
individuals”.
- 5.13 ECART must
also be guided by the principles of the HART Act, which are as follows:19
(a) the health and
well-being of children born as a result of the performance of an assisted
reproductive procedure or an established
procedure should be an important
consideration in all decisions about that procedure:
(b) the human health, safety, and dignity of present and future generations
should be preserved and promoted:
(c) while all persons are affected by assisted reproductive procedures and
established procedures, women, more than men, are directly
and significantly
affected by their application, and the health and well-being of women must be
protected in the use of these procedures:
12 Human Assisted
Reproductive Technology Act 2004, s 27(1).
- Human
Assisted Reproductive Technology Act 2004, s 27(3); and Ethics Committee on
Assisted Reproductive Technology Terms of Reference at 4. See also
Manatū Hauora | Ministry of Health Operational Standard for Ethics
Committees (March 2002) at
[6.2].
14 Ethics Committee on
Assisted Reproductive Technology Terms of Reference at 5.
15 Ethics Committee on Assisted
Reproductive Technology Terms of Reference at 5.
16 Human Assisted Reproductive
Technology Act 2004, s 28(1)(a)–(b).
17 Human Assisted Reproductive
Technology Act 2004, s 29.
- The
Advisory Committee on Assisted Reproductive Technology (ACART) is established by
the Minister of Health to issue guidelines and
give advice to the Ethics
Committee on Assisted Reproductive Technology (ECART) and the Minister: Human
Assisted Reproductive Technology
Act 2004, ss 32–35. ACART has a
representative membership like ECART, with a few differences in composition.
ACART must include
one or more members “with the ability to articulate the
interests of children” who is the Children’s Commissioner
or their
representative or employee and only one or more Māori members: s
34.
19 Human Assisted
Reproductive Technology Act 2004, s 4.
(d) no assisted reproductive procedure should be performed on an
individual and no human reproductive research should be conducted
on an
individual unless the individual has made an informed choice and given informed
consent:
(e) donor offspring should be made aware of their genetic origins and be able
to access information about those origins:
(f) the needs, values, and beliefs of Māori should be considered and
treated with respect:
(g) the different ethical, spiritual, and cultural perspectives in society
should be considered and treated with respect.
Requirements for approving gestational surrogacy
arrangements
- 5.14 In
2020, ACART issued revised guidelines that set out the requirements that must be
met before ECART can approve an application
involving surrogacy (ACART
Guidelines).20
- 5.15 The ACART
Guidelines require all parties to a prospective surrogacy arrangement to receive
the following:
(a) Individual and joint counselling:21 Counselling must be
culturally appropriate, provide for whānau involvement and include any
existing children of the parties.22
Counselling must continue to be available before and after pregnancy
is achieved.23 As part of
the ECART application, the counsellor must report that, in their opinion:
(i) the health and well-being of the intended surrogate and any resulting
children are adequately safeguarded;24 and
(ii) all affected parties have understood:25
- each
other’s needs and plans for continuing contact and information
sharing;
- any
specific issues that might affect the health and well-being of all affected
parties;
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020).
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [B] and [I(4)]–[I(5)].
Counselling must be provided by a counsellor who is eligible for membership of
the
Australian and New Zealand Infertility Counsellors Association: Fertility
Services Standard NZS 8181:2007 at [1.10.1]; and Ngā
Paerewa Health and
Disability Services Standard NZS 8134:2021 at [1.10.5].
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [B(3)]–[B(5)].
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [I(5)].
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [I(6)].
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [B(7)] and
[I(7)].
- the
implications if any resulting child has medical conditions, disabilities or
genetic disorders; and
- the
possibility that the surrogate may terminate the
pregnancy.
(b) Independent legal advice:26 The lawyer must report that
the parties understand the legal implications of the procedure(s).27 This includes who will be
recorded as parents on the surrogate-born child’s birth certificate, who
will be the child’s
legal parents on birth, the adoption process, the
unenforceability of the surrogacy arrangement and the surrogate’s right
to terminate the pregnancy and the need for payment of costs to comply with
the HART Act. 28 In practice,
legal advice might also be given on matters such as what name can be
recorded for the child on their birth certificate,
making provision for
testamentary guardianship, updating wills and arranging life insurance, parental
leave entitlements, the parties’
plans for future contact arrangements and
the importance of preserving the child’s rights to identity (discussed
in Chapter
3).
(c) Independent medical advice:29 Health reports must show the
parties understand the health implications of the procedure(s).30
- 5.16 In
addition, ECART requires intended parents to seek in-principle approval from
Oranga Tamariki to the intended parent(s) adopting
any child resulting from the
surrogacy arrangement. 31 As
we explain in Chapter 7, intended parents must apply to adopt a surrogate-born
child to become the child’s legal parents.
As part of the adoption
process, Oranga Tamariki must prepare a report for the Family Court that
addresses whether the intended parents
are “fit and proper” to care
for and raise the child and whether the welfare and interests of the child will
be promoted
by the adoption.32
Requiring prior in- principle approval from Oranga Tamariki before ECART
approves the surrogacy arrangement helps to ensure any surrogate-born
child’s well-being will be safeguarded
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [D(1)].
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [D(3)].
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [D(3)]; and Ethics Committee on
Assisted Reproductive Technology Surrogacy Arrangements involving Providers
of Fertility Services: Application Form (2011), sections 7 and 8.
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [E(1)].
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [E(2)].
- If
this approval has not been obtained, ECART may defer the application or make its
approval conditional on Oranga Tamariki’s
in-principle approval being
obtained. See, for example, Ethics Committee on Assisted Reproductive Technology
minutes of 23 August
2018 at [8] and [9] (applications E18/82 and E18/83), both
applications were approved “subject to receipt of a letter from
Oranga
Tamariki that approves an adoption order in principle”. Similar decisions
were reached in relation to applications in
Ethics Committee on Assisted
Reproductive Technology minutes of 13 December 2018 (E18/134); 9 May 2019
(E19/31); 4 July 2019 (E19/53);
and 27 February 2020 (E20/14 and E20/15). In
Ethics Committee on Assisted Reproductive Technology minutes of 16 February 2017
at
[4], application E17/06 was deferred to request further information,
including a copy of a letter from Child, Youth and Family approving
an adoption
order in
principle.
32 Adoption Act
1955, ss 10 and 11.
by ensuring there are no impediments to the intended parents adopting the child.
Before giving in-principle approval, Oranga Tamariki
will undertake documentary
checks (police background checks, medical record checks, character references
and child protection checks),
and a social worker from Oranga Tamariki’s
adoption team will meet with the intended parents in their
home.
- 5.17 ECART can
only approve an application relating to surrogacy if satisfied that the
following requirements are met:
(a) All relevant parties have
consented to the procedure, and the parties have not been subjected to any undue
influence.33 This involves
consideration of the nature of the parties’ relationship, including how
the intended parents and surrogate met,
how long they have known each other, how
the offer of surrogacy came about and their intentions for the future, as well
as their
appreciation of the risks of the procedure.34 While the ACART Guidelines do not
prescribe a minimum time that parties must know each other, it is generally
understood parties
should form a relationship over at least six months before
making an application.35 On
rare occasions, ECART might defer or decline an application due to concerns
about the short length of the parties’ relationship.36
(b) Affected parties have discussed, understood and declared intentions
between themselves about the day-to-day care, guardianship
and adoption of any
resulting child and any ongoing contact.37 These matters must be
addressed in the counselling reports and are also addressed in the legal
reports.
(c) The procedure is the best or the only opportunity for intended parents
to have a child, and they are not using the procedure
for social or financial
convenience or gain.38
Intended mothers must demonstrate a medical need to resort to
surrogacy, and for all applications, ECART will consider whether
there will be a
genetic link between one or both intended parents and the child. While a
genetic link is no longer
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [A(1)]–[A(2)].
- See,
for example, Ethics Committee on Assisted Reproductive Technology minutes of 16
February 2017 at [7] and [10] (applications E17/09
and E17/12); and 7 December
2020 at [10] (application E20/153).
- Rhonda
M Shaw “Should Surrogate Pregnancy Arrangements be Enforceable in
Aotearoa New Zealand?” (2020) 16 Policy
Quarterly 18 at 21.
- See,
for example, Ethics Committee on Assisted Reproductive Technology minutes of 3
November 2016 at [13] (application E16/94), where
the application was deferred
to request further information, including information about whether the length
of the relationship between
the intended parents and the surrogate has been
explored during counselling sessions. In one early application, the parties had
known
each other for eight months, and ECART observed that “they would
need to know each other for another 6 months before ECART
would consider another
application”: Minutes from 8 May 2007 (application E07/10). See also
Ethics Committee on Assisted Reproductive
Technology minutes from 24 November
2011 at [14] discussing application E11/50, which was declined, noting issues
that included the
length of time the intended mother and birth mother had known
each other and their expectations of ongoing contact.
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [I(1)].
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at
[A(4)]–[A(5)].
a mandatory requirement under the ACART Guidelines,39 ECART considers that this
remains a consideration when determining whether the procedure is the
“best or only” opportunity
for the intended parents to have a child
“on the basis of current literature that suggests that a genetic link to
parents is
in the best interests of any potential child”.40
(d) The potential
genetic, social, cultural and intergenerational aspects of the proposed
arrangements, as well as the relationships
between the parties, safeguard the
well- being of all parties and especially any resulting children.41
(e) The risks associated with a surrogacy for the parties and any resulting
child must be justified.42
This includes risks to the health and well-being of:
(i) the surrogate, including risks associated with pregnancy, childbirth and
“relinquishment of a resulting child” to
the intended parents, as
well as the risk that the intended parents may change their mind and the risks
to the surrogate’s
reproductive capacity in the future;
(ii) the intended parents (and embryo donor, if applicable), including the
risk that the surrogate changes her mind about relinquishing
a resulting child;
and
(iii) the surrogate-born child, including risks that arise where that child
becomes the subject of a dispute if the relationship between
the surrogate and
intended parents breaks down.
(f) The residency status and plans of the surrogate and intended parent(s)
safeguard the health and well-being of the child, particularly
in relation to
being born in Aotearoa New Zealand.43 This requirement was
introduced in 2020 because of “the possibility that some children born to
overseas surrogates could, in
theory, be stateless”.44
Current practice
- 5.18 Applications
to ECART are made by a fertility clinic on behalf of the intended parents. There
are only three fertility clinics
that operate in Aotearoa New Zealand (Fertility
Associates, Fertility Plus and Repromed). Fertility clinics must operate in
accordance
with
- ACART
removed the requirement for a genetic link in its 2020 guidelines on the basis
that it was considered potentially discriminatory
and unjustified: Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [I]; and Advisory Committee on
Assisted Reproductive Technology Second Round of Consultation on the Proposed
Donation and Surrogacy Guidelines: further changes since ACART’s 2017
consultation
(February 2019) at 27.
- Ethics
Committee on Assisted Reproductive Technology minutes of 29 October 2020 at [14]
(application E20/115). This was an application
for embryo donation, not
surrogacy, but the same requirement applies to both procedures.
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [A(6)]–[A(7)].
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [I(2)].
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at [I(3)].
- Advisory
Committee on Assisted Reproductive Technology Second Round of Consultation on
the Proposed Donation and Surrogacy Guidelines: further changes since
ACART’s 2017 consultation
(February 2019) at 35.
the safety and quality requirements set out in the New Zealand Fertility
Services Standard NZS 8181:2007, which will be replaced
by Ngā Paerewa
Health and Disability Services Standard NZS 8134:2021 in February 2022.45
- 5.19 Since 2005,
the number of surrogacy applications considered by ECART each year has increased
significantly. As we observe in
Chapter 2, this is likely due to several
factors, including changing social attitudes to diverse families. This has meant
more people
are now looking to surrogacy as a way to build their family.
- 5.20 In 2020,
ECART considered the highest ever number of new surrogacy applications in a
single year (37, compared to just 14 in
2005). In 2019, the number of
surrogacy applications was 29, and in 2018, the number was 26. The increase in
2020 may be partly
due to the Covid-19 pandemic deterring intended parents from
pursuing international surrogacy.
- 5.21 The number
of applications ECART can consider each year is limited. ECART only meets six
times a year and only considers around
12 applications for all assisted
reproductive procedures at each meeting. This means that sometimes people will
have to wait several
months for their application to be considered by ECART. In
2020, Fertility Associates submitted 27 surrogacy applications to ECART,
but by
March 2021, it had a list of 29 surrogacy applications to go to ECART for the
2021 year.46
- 5.22 Most
surrogacy applications to ECART concern gestational surrogacy, as traditional
surrogacy arrangements do not require ECART
approval. Our review of ECART
minutes identified that just two per cent of surrogacy applications are
described as traditional surrogacy
arrangements.47
- 5.23 The graph
below shows the outcome in surrogacy applications considered by ECART between
2005 and 2020.48
45 Pursuant to Health and
Disability Services (Safety) Standards Notice 2021.
46 Interview with Andrew Murray,
Medical Director, Fertility Associates (Kathryn Ryan, Nine to Noon, RNZ, 30
March 2021).
- The
surrogacy arrangement was described as a traditional surrogacy arrangement in
the following applications: E19/24; E19/30; E15/109;
E14/150; E13/36; E11/07;
and E21/002.
- Graph
created by Te Aka Matua o te Ture | Law Commission using information recorded in
Ethics Committee on Assisted Reproductive Technology
minutes. This graph
demonstrates the final outcome of applications. Applications that were initially
deferred or declined but later
approved are counted as “approved”,
as are any applications that are approved subject to
conditions.
ECART Outcomes for
clinic-assisted surrogacy, 2005-2020
40
35
30
25
20
15
10
5
0
2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
2017 2018 2019 2020
Approved Declined Deferred Non-binding ethical advice
ISSUES
- 5.24 Our
initial consultation suggested general support for the ECART process. It was
described to us by some fertility clinic representatives
as “safe”
and “thorough”, and some lawyers pointed to the fact that very few
surrogacy arrangements that
go through the ECART process end in controversy or
dispute.49 The high rate of
ECART approvals has been attributed to the robustness of the process itself,
which means that surrogacy arrangements
that go to ECART have already gone
through a thorough review process when preparing the application.50
- 5.25 Associate
Professor Debra Wilson has stated that the ECART process “is widely
regarded as playing an important and successful
role in regulated assisted
reproduction in New Zealand”,51 a view shared by other
academics.52 Wilson has noted
that, in international discussions, the ECART model “is frequently cited
as approaching best practice”.53 ECART itself endorses the
requirement for prior approval, as it considers that the ECART process protects
the interests of all interested
parties.54
- We
are aware of one surrogacy arrangement that had received ECART approval where
the surrogate reportedly experienced pre-natal depression
and terminated the
pregnancy without informing the intended parents: Cloe Willetts “Kiwi
Mum’s Nightmare: ‘My Surrogacy
Heartbreak’” New
Zealand Woman’s Weekly (New Zealand, 10 May 2021) at 26.
- See,
for example, Lynley Anderson, Jeanne Snelling and Huia Tomlins-Jahnke “The
practice of surrogacy in New Zealand”
(2012) 52 Australian and New Zealand
Journal of Obstetrics and Gynaecology 253 at 256.
- Debra
Wilson “Avoiding the Public Policy and Human Rights Conflict in Regulating
Surrogacy: The Potential Role of Ethics Committees
in Determining Surrogacy
Applications” (2017) 7 UC Irvine L Rev 653 at
672.
52 Ruth Walker and Liezl
van Zyl “Surrogacy and the law: three perspectives” (2020) 10 NZFLJ
9 at 11.
53 Debra Wilson “Surrogacy in New
Zealand” [2016] NZLJ 401 at 409.
- Letter
from Ethics Committee on Assisted Reproductive Technology to Te Aka Matua o te
Ture | Law Commission regarding initial views
on surrogacy review (7 July
2021).
- 5.26 However,
many people we have spoken with identify a range of problems with the way the
ECART process is operating in practice.
There is a concern that these problems
may deter people from pursuing clinic-assisted surrogacy in Aotearoa New Zealand
and instead
incentivise people to pursue an international surrogacy
arrangement.
- 5.27 The fact
that ECART approval is not required for all surrogacy arrangements has also been
identified as a concern.
- 5.28 We consider
these issues below.
Problems
with the ECART process in practice
ECART process is slow and complex
- 5.29 Meeting
the requirements for making an application to ECART (counselling, legal advice,
medical advice and in-principle approval
from Oranga Tamariki) involves a lot of
work and can take a long time. One fertility clinic representative noted that
surrogacy arrangements
require around four times more work than other fertility
services they provide. However, some acknowledged the importance of these
steps.
One fertility clinic representative explained that:
I think for some
people the romantic idea of being a surrogate gets weeded out with all the time
and appointments which is actually
good for intending parents. It’s also
good for preparing people for what’s going to happen even though sometimes
you
feel like the doomsday counsel. You have to ask all these hypothetical
questions. So, I do think that sometimes people find it really
hard, especially
if the pregnancy hasn’t been established and no embryos have been created,
but unfortunately surrogacy pregnancy
is no different to any other pregnancy and
you always see things go wrong – you have to prepare people for that.
- 5.30 There are,
however, additional delays in the ECART process caused primarily by a lack of
resourcing. ECART only meets every two
months and can only consider a limited
number of applications at each meeting. It might take several months before an
application
is considered once it is submitted. It can then take up to a month
for the minutes to be recorded and the decision to be notified
to the fertility
clinic. If further information is requested by ECART, applicants might have to
wait another two months for their
application to be reconsidered.
- 5.31 Delays in
having applications considered by ECART are likely to grow given its increasing
workload in relation to surrogacy arrangements.
- 5.32 We have
heard about challenges in regional Aotearoa New Zealand where finding an
experienced lawyer or obtaining an independent
medical report can be difficult.
The limited availability of counsellors, not only in the regions but also in the
main centres, was
also noted as a concern.
- 5.33 For one
male couple we spoke with, it took 18 months from their first approach to a
fertility clinic (having already found a
surrogate and ovum donor) to their
first pregnancy scan, even though they pushed hard to have the process completed
as quickly as
possible. In many cases, the ECART process can take much
longer.
- 5.34 The delays
and complexities of the ECART process can be frustrating and distressing for
people, especially because fertility
is a time-sensitive issue. Many people who
turn to surrogacy have gone through years of unsuccessful fertility treatment
and may
not have the energy to navigate the ECART process.
ECART process is expensive
- 5.35 While
ECART does not recover its own costs, intended parents must pay for
counselling, legal advice and medical costs associated
with compiling the
application. In addition, as intended parents cannot apply directly to ECART,
the application must be made by
the fertility clinic, and this usually involves
another cost payable by the intended parents.
- 5.36 One
fertility clinic highlighted that the cost of going through the ECART process
and then the adoption process was prohibitive
for some intended parents,
especially for some of its Māori and Pacific patients. A representative
from that clinic told us,
“We would like to make sure there is equitable
access for all patients. This is a huge issue, and we can’t provide an
equitable service for reasons outside of our control.”
- 5.37 If intended
parents must reapply to ECART (for example, if a prior application was declined,
if their surrogacy arrangement falls
through and they find another surrogate or
if the three-year time limit on the approval expires), they have to make a new
or updated
application, which may add further cost and delay. Several people
felt that the time limit on approval does not reflect the reality
that, in some
surrogacy arrangements, it can take years for a pregnancy to be established. One
intended parent we spoke with had
been through the ECART process four times with
four different surrogates.
ECART process is seen as overly invasive
- 5.38 Several
intended parents we have spoken with felt that the ECART process was overly
invasive. One intended parent told us “It’s
hugely invasive, the
whole time you have to constantly justify what you’re doing. You have no
agency or power. All you are
is a cheque book.”
- 5.39 Oranga
Tamariki’s role in surrogacy arrangements was often identified as a source
of concern.55 As noted above,
an Oranga Tamariki social worker is required under adoption law to assess
whether the intended parents are “fit
and proper” to care for the
child. Some felt that this parental suitability assessment was not appropriate
in the surrogacy
context. One intended parent told us that “it’s
like rubbing salt in a wound, especially since you’ve struggled
so much
already to get to this point”. Some intended parents saw a need for some
level of involvement by Oranga Tamariki, but
certain requirements, such as the
need to provide character references, to disclose details about their finances
and historical unrelated
offending and to go through the detailed adoptive
applicant assessment (discussed in greater detail in Chapter 7), felt invasive,
uncomfortable and unnecessary. Many noted that people who intend to have
children naturally do not have to go through this process.
Some thought it was a
poor use of Oranga Tamariki’s limited resources.
- Concerns
about the role of Oranga Tamariki social workers in surrogacy arrangements were
also reflected in interviews with Intended
parents and surrogates about their
experience of surrogacy in Aotearoa New Zealand: Ruth Walker and Liezl van Zyl
“Fear and
Uncertainty: The Surrogacy Triad’s Experience of Social
Workers’ Role Ambiguity” (7 September 2020) British Journal
of
Social Work bcaa105 (advance article) at 7–10.
No right to appeal or review of ECART decisions
- 5.40 The
HART Act does not explicitly provide for a right of appeal or review in relation
to decisions made by ECART to decline an
application, although ECART can
reconsider an application it has previously declined if relevant new information
becomes available.56 While decisions
made by ECART could be subject to judicial review by the High Court,57 that option would likely be cost
prohibitive for many people, and we are not aware of any judicial review
applications being made
in respect of a decision by ECART not to approve a
surrogacy arrangement.
- 5.41 The lack of
a clear appeal or review process may be a concern. For the people whose
applications are declined, it may mean the
end of their journey to build a
family, or it may mean they consider international surrogacy or enter a
traditional surrogacy arrangement
outside a fertility clinic, neither of which
require ECART
approval.
Some
surrogacy arrangements lack safeguards
- 5.42 Traditional
surrogacy arrangements are unregulated and do not require ECART approval. This
means there is no requirement for
the parties to seek counselling, legal advice
or medical advice. These are important safeguards that help to protect the
parties
and minimise the risk of a breakdown in the relationship during or after
the surrogacy arrangement.
- 5.43 In
traditional surrogacy arrangements, the surrogate’s ovum is used, which
means not only does she gestate the child, she
is also the child’s genetic
parent. This potentially raises more complex ethical issues and might increase
the risk of relationship
problems arising, especially if the parties do not
access the support available as part of the ECART process. As Fertility
Associates
has previously observed, “cases where the surrogate’s own
eggs are used are amongst the most challenging and risky surrogacy
cases”.58
- 5.44 This issue
was recently highlighted when it was reported in the media that a surrogate in a
traditional surrogacy arrangement
had changed her mind during pregnancy and
wanted to keep the child.59
The result in that case was a shared-care arrangement in relation to the
resulting child between the surrogate and the intended parents.
One traditional
surrogate we spoke with, who did not go through the ECART process, said that
traditional surrogacy is far more complex
than gestational surrogacy and saw
merit in having a process to ensure counselling and psychological testing. She
said it was difficult
to find a counsellor who understood surrogacy and would
have preferred to use the counsellor she had seen through a fertility clinic
during an earlier ovum donation process.
- 5.45 Another
issue is that Oranga Tamariki will not provide in-principle approval in
relation to a traditional surrogacy arrangement.
One male couple we spoke
with who had a child by traditional surrogacy tried to do everything
“right” by mimicking the
procedural requirements under the ECART
process outside a clinic environment. However, they could
56 Human Assisted
Reproductive Technology Act 2004, s 18(3).
57 Pursuant to the Judicial Review
Procedure Act 2016.
- Fertility
Associates 2019 submission to ACART: Advisory Committee on Assisted Reproductive
Technology Proposed Donation and Surrogacy Guidelines consultation:
Organisation submissions (2019) at 48.
- Katie
Harris “Surrogacy Horror: Kiwi parents are having to share custody with
surrogate” NZ Herald (online ed, New Zealand, 24 January
2021).
not obtain in-principle approval to adopt prior to conception, which was
stressful and frustrating and meant there was no security
or certainty that they
would be approved for adoption. They said that “it felt like we were on
our own” and would have
liked to have been able to go to ECART directly
without a fertility clinic being involved.
- 5.46 In addition
to traditional surrogacy arrangements, gestational surrogacy arrangements where
the surrogate’s partner donates
his sperm do not require ECART approval.
This appears to be an unintended consequence of how the terms “assisted
reproductive
procedure” and “established procedure” are
defined.60 While we do not
think that these types of gestational surrogacy arrangements are very common,
they may raise similar complexities
as traditional surrogacy arrangements
because they establish a genetic link between the surrogate’s partner and
the surrogate-born
child.
- 5.47 The lack of
regulation of some surrogacy arrangements has been identified as a problem. In
advice to the Minister of Health published
in June 2021, ACART recommended that
all clinic-assisted surrogacies should be subject to ECART consideration,
observing that:61
All
surrogacies can be ethically complex and involve both a woman’s choices
about her body, and the sometimes conflicting interests
of the potential child
and the intending parents.
...
Also, if clinic assisted surrogacies were not subject to ECART
approval, the responsibility for managing those surrogacies
would lie entirely
with the clinics.
OPTIONS FOR REFORM
- 5.48 The
current regulatory framework was put in place at a time when gestational
surrogacy was an emerging practice. It is timely
to reconsider whether it
remains the best form of regulation in Aotearoa New Zealand and, if so, the
options to improve the ECART
process to address the problems identified
above.
Should
gestational surrogacy arrangements continue to require prior approval?
- 5.49 Some have
questioned the continued need for prior, independent approval of surrogacy
arrangements, particularly given the problems
with the ECART process identified
above, the increasing social acceptance of surrogacy as a method of family
building and the growing
body of empirical research that demonstrates largely
positive outcomes for surrogates, surrogate-born children and their families.62
- In
vitro fertilisation is defined as an established procedure that does not require
approval, unless the procedure involves the use
of a donated ovum in conjunction
with donated sperm: Human Assisted Reproductive Technology Order 2005, schedule
pt 2 cl 1(b). If
the surrogate’s partner’s sperm is used, this is
not considered “donated sperm” because the definition of
donated
sperm excludes sperm “contributed by the spouse or partner of the
patient” and the patient is the surrogate (being
the person who “is
the subject of the procedure in which the eggs or sperm are used”): cl 3
(definitions of “donated
sperm” and “patient”).
- Advisory
Committee on Assisted Reproductive Technology ACART Advice and Guidelines for
Gamete and Embryo Donation and Surrogacy (June 2021) at recommendation 4A
and [135]–[136].
- See
Ruth Walker and Liezl van Zyl “New Zealand’s Approach to
International Surrogacy: An Ethical Perspective” in
Annick Masselot and
Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New Zealand:
Ethics, Law, Policy
- 5.50 However,
our preliminary view is that surrogacy arrangements should continue to require
prior, independent approval, for several
reasons:
(a) First, prior
approval is a “proactive safeguard” that protects the rights and
interests of all parties involved,
including any resulting child.63 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.
(b) Second, there appears to be strong public support for prior approval of
surrogacy arrangements in Aotearoa New Zealand. In the
Surrogacy Survey, most
respondents (82 per cent) thought that there should be both medical and
psychological screening by an ethics
committee for surrogates, with a slightly
smaller majority (70 per cent) also supporting screening for intended parents.64
(c) Third, prior approval is consistent with current international best
practice. 65 The Verona
Principles, published in 2021, advocate for “an established framework for
pre- surrogacy arrangements which promotes
the rights of children born of
surrogacy”.66 This framework
should include screenings, multidisciplinary assessment, informed consent and
reviews of those arrangements. 67
Also in 2021, Ireland’s Special Rapporteur on Child Protection
recommended a prior approval model on the basis that it “offers
strong
protection for the rights of both children and adults”.68 Prior approval is generally
regarded as working well in most other jurisdictions where it is imposed. 69 In Victoria, a 2019
independent review found that the Patient Review
and Rights (Centre for Commercial & Corporate Law, Te
Whare Wānanga o Waitaha | University of Canterbury, Christchurch, 2019) 97
at
113. Research on the impact of surrogacy is summarised in Chapter 2 of this
Issues Paper.
- Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(Department of Children, Equality, Disability, Integration and Youth,
Ireland, December 2020) at 16.
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Public Perceptions Survey (Te Whare Wānanga o
Waitaha | University of Canterbury, May 2020) vol 3 at 133 and 143.
- Prior,
independent approval of a surrogacy arrangement is already a requirement in
Victoria, Western Australia, Israel, South Africa
and Greece. Draft legislation
that seeks to introduce a requirement for prior approval has also been developed
in Iceland, Ireland
and Portugal (where legislation was passed but later
declared unconstitutional for reasons discussed in Chapter 7 of this Issues
Paper). See Jens M Scherpe, Claire Fenton-Glynn and Terry Kaan (eds) Eastern
and Western Perspectives on Surrogacy (Intersentia, Cambridge (UK),
2019).
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [5.1].
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [5.1]. Similar
recommendations were also made to the United Nations by a group of donor-
conceived people: International Principles for Donor Conception and Surrogacy
(November 2019), principle 2.
- Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(Department of Children, Equality, Disability, Integration and Youth,
Ireland, December 2020) at 17. See also General Scheme of the
Assisted Human
Reproduction Bill 2017, head 37.
- See
Rhona Schuz “Surrogacy in Israel” in Jens M Scherpe, Claire
Fenton-Glynn and Terry Kaan (eds) Eastern and Western Perspectives on
Surrogacy (Intersentia, Cambridge (UK), 2019) 165 at 183; Eleni Zervogianni
“Surrogacy in Greece” in Jens M Scherpe, Claire Fenton-Glynn
and
Terry Kaan (eds) Eastern and Western Perspectives on Surrogacy
(Intersentia, Cambridge (UK), 2019) 147 at 163; and Julia Sloth-Nielsen
“Surrogacy in South Africa” in Jens M Scherpe,
Claire Fenton-Glynn
and Terry Kaan (eds) Eastern and Western Perspectives on Surrogacy
(Intersentia, Cambridge (UK), 2019) 185 at 200. Compare with the findings
of a review in Western Australia, which found that the
current regulatory system
for assisted reproductive technology in general was causing unnecessary
regulatory burden and that the
considerations relevant to surrogacy in
particular did not present reason to form an alternative view: Sonia Allen
The Review of the Western Australian Human Reproductive Technology Act 1991
and the Surrogacy Act 2008
Panel (PRP) should “maintain an oversight role in approving surrogacy
arrangements” but that this role should not require
an investigative
approach to reviewing applications. Unlike ECART, the PRP hears applications in
person, and this was found to be
confronting and stressful for people seeking
approval.70
(d) Fourth,
prior approval of surrogacy arrangements is preferable to the alternatives. It
is generally considered a more effective
form of regulation than post-birth
regulation because it has the potential to prevent problems from arising in the
first place rather
than seeking to remedy any problems after the child has been
born.71 We also think that
prior approval is preferable over a co-regulation model under which fertility
clinics are responsible for ensuring
eligibility and screening requirements are
complied with and for deciding whether to provide fertility services in a
surrogacy arrangement.
72 The
fertility clinics and the medical specialists and counsellors employed by these
clinics have an important relationship with parties
in a surrogacy arrangement.
Imposing on them an approval role would be an added responsibility that might
impede their ability to
maintain a supportive therapeutic relationship with
their patients.73 We also
note that, in other jurisdictions, concerns have been raised about the potential
conflict of interest that fertility clinics
may have given their financial
interest in the provision of fertility services.74
(e) Fifth, a robust prior approval process provides confidence that the
surrogacy arrangement is in the best interests of the child.
This negates the
need for a comprehensive post-birth assessment of the child’s best
interests for the purposes
(Report: Part 1) (January 2019) at 81–82; and Sonia
Allen The Review of the Western Australian Human Reproductive Technology Act
1991 and the Surrogacy Act 2008 (Report: Part 2) (January 2019) at 66.
- Michael
Gorton Helping Victorians create families with assisted reproductive
treatment: Final Report of the Independent Review of Assisted Reproductive
Treatment (Victorian Department of Health and Human Services, Melbourne, May
2019) at 138.
- Debra
Wilson “Avoiding the Public Policy and Human Rights Conflict in Regulating
Surrogacy: The Potential Role of Ethics Committees
in Determining Surrogacy
Applications” (2017) 7 UC Irvine L Rev 653 at 655, 666 and 677; Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(December 2020) at 17; and Claire Fenton-Glynn and Jens M Scherpe
“Surrogacy in a Globalised World: Comparative Analysis and
Thoughts on
Regulation” in Jens M Scherpe, Claire Fenton-Glynn and Terry Kaan (eds)
Eastern and Western Perspectives on Surrogacy (Intersentia, Cambridge
(UK), 2019) 515 at 579.
- A
co-regulation model has been recommended in Western Australia, to replace the
current requirement for prior approval by the Reproductive
Technology Council,
and in England, Wales and Scotland, to regulate non-profit surrogacy
organisations that facilitate surrogacy
arrangements: Sonia Allen The Review
of the Western Australian Human Reproductive Technology Act 1991 and the
Surrogacy Act 2008 (Report: Part 1) (January 2019) at 81–82; Sonia
Allen The Review of the Western Australian Human Reproductive Technology Act
1991 and the Surrogacy Act 2008 (Report: Part 2) (January 2019) at
82–83; and Law Commission of England and Wales and Scottish Law Commission
Building families through surrogacy: a new law – A joint consultation
paper (CP244/DP167, 2019), ch 9. Another model is proposed in Ruth Walker
and Liezl van Zyl Towards a Professional Model of Surrogate Motherhood
(Palgrave MacMillan, London, 2017). Under that model, surrogates and
fertility clinics are licensed and registered by an independent
regulatory body
with responsibility for ensuring that legal and ethical standards are met.
- Similar
concerns have been observed in Victoria, Australia, where counsellors have a
role in reviewing the outcome of police checks:
Michael Gorton Review of
assisted reproductive Treatment: Interim Report (Victorian Department of
Health and Human Services, Melbourne, October 2018) at 59–60.
- Legislative
Council Standing Committee on Law and Justice Legislation on altruistic
surrogacy in NSW (Report 38, 2009) at [4.62]–[4.67]; and South
Australian Law Reform Institute Surrogacy: A Legislative Framework – A
Review of Part 2B of the Family Relationships Act 1975 (SA) (Report 12,
2018) at [9.5.2] and [9.5.5].
of establishing legal parenthood. 75 In Chapter 7, we present our
proposal to streamline the recognition of the intended parents as the legal
parents of a surrogate-born
child where ECART approval was
obtained.
- 5.51 We have
also considered whether prior approval should only be required in some cases but
not for “straightforward”
surrogacy arrangements. This would address
concerns regarding cost, administrative burden and delay for some intended
parents and
would reduce the number of applications seeking approval. However,
we think it would be difficult to determine what surrogacy arrangements
should
and should not be required to obtain prior approval. Each surrogacy arrangement
is different and will present its own risks.
Such an approach would also create
a two-tier system for surrogacy arrangements, which might incentivise people to
structure or describe
their surrogacy arrangement in a certain way to avoid the
need for prior
approval.
Should
ECART continue to have this approval function?
- 5.52 Our
preliminary view is that ECART should continue to be responsible for approving
surrogacy arrangements rather than establishing
a new regulatory authority or
replacing the ECART process with a court process, for the following
reasons:
(a) First, as noted above, the ECART process appears to
have general support, and its track record to date suggests that very few
surrogacy arrangements that go through the ECART process end in controversy or
dispute.
(b) Second, ECART’s representative nature allows for the consideration
of multiple perspectives, and its complementary functions,
which include
approving other forms of assisted reproductive procedures and informing ACART of
emerging or potential issues, enable
it to take a more holistic approach to
common issues that might arise in assisted reproductive technology.76
(c) Third, we think that any significant structural changes to the regulatory
system (such as the creation of a new regulatory authority)
should only be made
following a wider review of how human assisted reproduction is regulated in
Aotearoa New Zealand. This is beyond
the scope of this review, which is limited
to considering how surrogacy should be regulated.
- 5.53 For these
reasons, our preference is to focus on improving the ECART process to address
the issues identified above rather than
replacing ECART with a different
regulatory framework or approval
body.
Options
to improve the ECART process
- 5.54 An
important guiding principle of our review is to encourage New Zealanders to
enter surrogacy arrangements in Aotearoa New Zealand
rather than offshore. To
achieve this, the regulation of domestic surrogacy needs to be efficient and
cost-effective, while still
- The
Verona Principles state that, if there have not been adequate
pre-surrogacy arrangements, a court or other competent authority needs to
conduct a post-birth determination of the
best interests of the child in
proceedings concerning legal parentage and/or parental responsibility:
International Social Service
Principles for the protection of the rights of
the child born through surrogacy (Verona principles) (Geneva, 2021) at
[5.6].
- See
Debra Wilson “Avoiding the Public Policy and Human Rights Conflict in
Regulating Surrogacy: The Potential Role of Ethics
Committees in Determining
Surrogacy Applications” (2017) 7 UC Irvine L Rev 653 at
672.
protecting the rights and interests of all the parties involved and giving
paramountcy to the child’s best interests.
- 5.55 Possible
options for improving the ECART process are identified
below.
Increasing ECART’s capacity to consider surrogacy
applications
- 5.56 As
noted above, ECART only meets every two months and is limited in the number of
applications it can consider at each meeting.
If ECART met more frequently or if
it established a subcommittee that dealt solely with surrogacy arrangements,
this could reduce
the delay that some people experience. This would have obvious
resourcing implications. Currently, ECART does not recover its costs
from
applicants, so additional public funding would be required. Nonetheless, this
may be a necessary step to meet the increasing
demand for surrogacy, especially
if our proposal below to extend the ECART process to all surrogacy arrangements
is accepted.
Reconsidering the parental suitability assessment in surrogacy
arrangements
- 5.57 As
we explain in Chapter 7, adoption and surrogacy are two different forms of
family building that require separate legal frameworks.
This calls into question
whether intended parents’ suitability to care for and raise the child
should be assessed in the same
way as prospective adoptive parents as is
currently required. In 2005, the Commission considered that surrogacy
arrangements are
more similar to donor gamete conception or natural parenthood
than adoption and that state assessment of parental suitability should
not be
required.77 A similar view
was reached by the Law Commission of England and Wales and the Scottish Law
Commission in 2019.78
- 5.58 However,
some form of assessment as part of the ECART process may still be appropriate
to safeguard the child’s best interests
and to ensure the state meets its
obligations to take all appropriate measures to protect children from the future
risk of harm under
the United Nations Convention on the Rights of the Child. 79 The Verona Principles,
published in 2021, recommend that pre-surrogacy arrangements include criminal
background and child protection
checks as well as “independent assessment
of capacities to ensure the child’s social, physical, emotional and
educational
well-being and development, and protection from harm”.80 Criminal record checks have
been proposed by the Law Commission of England and Wales and the Scottish Law
Commission.81
The
77 Te Aka Matua o te Ture
| Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
[7.72].
78 Law Commission of England and Wales
and Scottish Law Commission Building families through surrogacy: a new
law
– A joint consultation paper (CP244/DP167, 2019) at [13.9].
- United
Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), art 19; and Committee on
the Rights of the Child General Comment No. 14 (2013) on the right of the
child to have his or her best interests taken as a primary consideration (art.
3,
para. 1) UN Doc CRC/C/GC/14 (29 May 2013) at [74].
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [5.5]. See also Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/HRC/37/60 (15 January 2018) at
[77](f).
81 Law Commission of
England and Wales and Scottish Law Commission Building families through
surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at
[13.69]–[13.72].
Australian Human Rights Commission has previously recommended that all
Australian states and territories should include in surrogacy
legislation
criteria directed at parental suitability, to acknowledge the state’s
responsibility to ensure the safety
and well-being of children in all cases
where it regulates the transfer of parental responsibility.82
- 5.59 We are
interested in your views on what type of assessment of intended parents
should be required in surrogacy arrangements
and whether this role should
continue to be performed by Oranga Tamariki. An alternative approach could be
that the counsellor
has a role in assessing parental suitability. However,
a 2019 review in Victoria found that the “blending of counselling
and
screening functions” made it difficult for counsellors to build rapport
with those involved in a surrogacy process and
had an adverse effect on the
therapeutic effectiveness of counselling.83
Providing for an appeal or review process
- 5.60 Given
the significance of a decision by ECART to decline an application, we are
interested in your views about whether there
is a need for an appeal or review
process for applications that are declined by ECART. In Victoria, for example,
legislation provides
a process for decisions of the PRP not to approve a
surrogacy arrangement to be reviewed by the Victorian Civil and Administrative
Tribunal.84 Alternatively, a
review panel could be established to conduct an independent review of the
application and ECART’s decision.
Extending time for approvals
- 5.61 It
may take a long time for a surrogate to become pregnant. The current time limits
on ECART approval and Oranga Tamariki’s
in-principle approval can create
further cost, administrative burden and delay in some circumstances. This could
be avoided if the
approval timeframes were extended, perhaps to five years, or
were eliminated altogether provided the parties to the surrogacy arrangement
do
not change.
Other options to improve the ECART process
- 5.62 We
have also identified other options for reform that could improve the general
effectiveness of the ECART process and minimise
the risk of problems arising
during or after the surrogacy arrangement:
(a) Requiring surrogacy
arrangements to be recorded in writing and signed by the parties. Currently, the
ECART application serves
as a record of what the parties have discussed and
agreed. There is some evidence, however, that more formal, non-
- Australian
Human Rights Commission Submission to the House of Representatives Standing
Committee on Social Policy and Legal Affairs: Inquiry into the Regulatory and
Legislative Aspects of Surrogacy Arrangements (17 February 2016) at
[102]–[103].
- Michael
Gorton Helping Victorians create families with assisted reproductive
treatment: Final Report of the Independent Review of Assisted Reproductive
Treatment (Victorian Department of Health and Human Services, Melbourne, May
2019) at 124 and 127. That review recommended that criminal record
checks be
undertaken by the fertility service provider rather than the counsellor, at R36.
However, the Victorian Government subsequently
removed the requirement for
criminal record checks entirely to provide “easier and fairer
access” to assisted reproductive
treatment: Jenny Mikakos, Minister for
Health, VIC “IVF now fairer and easier to access for all Victorians”
(press release,
4 June
2020).
84 Assisted
Reproductive Treatment Act 2008 (Vic), s 96.
binding agreements are becoming more common. 85 A more formal agreement,
signed by the parties and witnessed by their lawyers, might provide greater
certainty, minimise the risk
of disagreement and assist the parties to resolve
any problems.86 Several
intended parents told us that they had written agreements with their surrogate
even though they understood these were unenforceable.
One intended parent, who
did not go through the ECART process, told us that going through the process of
preparing the agreement
was “useful as a tool for building unison between
the parties”.
(b) Improving counselling requirements. We
are interested in views on whether counselling requirements could be improved
for the period
during and after the surrogacy arrangement. The ACART Guidelines
provide comprehensive guidance on counselling requirements. However,
two
surrogates we spoke with in initial consultation thought that counselling should
focus more on post-birth care and support for
the surrogate, which may be
difficult to consider in detail before pregnancy is established. One fertility
clinic counsellor we spoke
with said that, while they offer further counselling
during the surrogacy arrangement, uptake varies. In some Australian states,
additional counselling must take place following the birth of the child.87 This is seen as providing a
valuable opportunity to provide emotional and psychological support to the
surrogate and can help ensure
that the transfer of legal parenthood from the
surrogate to the intended parents is underpinned by the surrogate’s
informed
consent.88 We
discuss legal parenthood in Chapter 7.
(c) Modifying the membership of ECART. ECART is not required to have a member
with the ability to articulate the interests of children,
unlike ACART.89 This requirement might be
considered appropriate, especially if our proposals in Chapter 7 are adopted.90 Under those proposals, ECART
approval would be a key condition for recognising intended parents as the
child’s legal parents
after birth. Some fertility clinic representatives
and intended parents have also expressed a view that ECART should include
counsellors
with expertise in surrogacy arrangements and possibly a
- Debra
Wilson “The Emerging Picture of the Role Played by Surrogacy Contracts in
New Zealand” in Annick Masselot and Rhonda
Powell (eds) Perspectives
on Commercial Surrogacy in New Zealand: Ethics, Law, Policy and Rights
(Centre for Commercial & Corporate Law, Te Whare Wānanga o Waitaha
| University of Canterbury, Christchurch, 2019) 153 at
153 and 165. A survey of
lawyers asked whether they advise clients to enter some form of written
arrangement. Forty- one lawyers
answered this question, 29 responded yes, six
responded no and six said “nothing as formal as a written
agreement”.
- Wilson
argues that the process of creating a surrogacy arrangement brings an element of
counselling that might not otherwise be there,
can make the relationship more
personal and can act as a reality check: Debra Wilson “The Emerging
Picture of the Role Played
by Surrogacy Contracts in New Zealand” in
Annick Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy
in New Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 153 at
179–180.
- Surrogacy
Act 2012 (Tas), s 16; Surrogacy Act 2010 (NSW), s 35; Surrogacy Act 2010 (Qld),
s 32; and Surrogacy Act 2008 (WA), s 21.
- Michael
Gorton Helping Victorians create families with assisted reproductive
treatment: Final Report of the Independent Review of Assisted Reproductive
Treatment (Victorian Department of Health and Human Services, Melbourne, May
2019) at 123.
89 Human
Assisted Reproduction Technology Act 2004, s 34(4)(g).
- See
Debra Wilson “Avoiding the Public Policy and Human Rights Conflict in
Regulating Surrogacy: The Potential Role of Ethics
Committees in Determining
Surrogacy Applications” (2017) 7 UC Irvine L Rev 653 at
676.
greater number of medical professionals with expertise in obstetrics and
gynaecology.
(d) Improving monitoring and reporting on outcomes.
ECART has a statutory role in monitoring surrogacy arrangements.91 However, in practice, there
is little oversight once ECART approval is given unless a significant
change in circumstances
is reported to ECART. Fertility clinics themselves
may not be involved in a surrogacy arrangement after the pregnancy is
established.
We are interested in views on whether there are ways that
ECART’s ongoing monitoring role could be strengthened. For
example,
it could ask intended parents and surrogates to provide feedback on their
surrogacy experience, which could then help
ECART to identify ways to
improve its processes and liaise with ACART on any matters relating to the ACART
Guidelines that arise.92
Extending the ECART
process to all surrogacy arrangements
- 5.63 We think
that the ECART process should be available to all surrogacy arrangements in
Aotearoa New Zealand. Specifically, we think
that:
(a) all
gestational surrogacy arrangements should require ECART approval, regardless
of who provides the gametes; and
(b) parties to a traditional surrogacy arrangement should be able to apply to
ECART for approval.
- 5.64 Unlike
gestational surrogacy, traditional surrogacy can be arranged privately, and
conception can be achieved without clinic
assistance. This means that a
mandatory requirement for traditional surrogacy arrangements to obtain ECART
approval would be difficult
to enforce. It could also have the undesired effect
of driving traditional surrogacy arrangements underground.93
- 5.65 For these
reasons, we think that the better approach is to incentivise people considering
a traditional surrogacy arrangement
to utilise the ECART process and the
protections it provides rather than attempting to make it mandatory. We think
our proposal in
Chapter
7 to streamline the recognition of the intended parents as the legal parents of
a surrogate-born child where ECART approval was obtained
would provide a clear
incentive to utilise the ECART process in a traditional surrogacy arrangement.
Our proposals in Chapter 10
to improve the availability of information about
surrogacy should also promote the benefits of the ECART process to those
considering
traditional surrogacy.
- 5.66 There are
two options for enabling people considering a traditional surrogacy arrangement
to utilise the ECART process.
91 Human Assisted
Reproductive Technology Act 2004, s 28(1)(b).
92 Consistent with its function under s
28(1)(c) of the Human Assisted Reproductive Technology Act 2004.
- Michael
Gorton Helping Victorians create families with assisted reproductive
treatment: Final Report of the Independent Review of Assisted Reproductive
Treatment (Victorian Department of Health and Human Services, Melbourne, May
2019) at 121–122.
Option 1: Require all clinic-assisted surrogacy arrangements to
obtain ECART approval
- 5.67 ECART
approval could be required for all clinic-assisted surrogacy arrangements,
including clinic-assisted traditional surrogacy
arrangements. This option
already has broad support, including from ACART and ECART. In June 2021, ACART
published its advice to
the Minister of Health recommending that all
clinic-assisted surrogacies be subject to ECART approval.94 The recommendation was made
following two rounds of public consultation on the proposal, which received
general support from submitters.95
A similar recommendation was made in Victoria in 2019 to ensure that all
surrogacy arrangements through a fertility clinic are subject
to appropriate
oversight.96
- 5.68 ACART’s
view was that all surrogacies can be ethically complex and ECART’s
oversight would “be an ideal way
of managing the risks associated with
surrogacy”. 97 ACART
acknowledged the risk that this might delay people’s treatment and cause
them stress, and as a result, some people might
choose not to go through
fertility clinics.98
- 5.69 ACART noted
that, in practice, clinics already tend to refer all clinic-assisted surrogacies
to ECART for review (including traditional
surrogacy arrangements for
non-binding ethical advice), so it did not think the change would make more work
for ECART and clinics.99 However, our
proposals in Chapter 7 may have a different impact. As noted above, we think
that people considering a traditional surrogacy
arrangement should be
incentivised to utilise the ECART process. If our proposals in Chapter 7 achieve
this goal, this could result
in a significant increase in the number of people
seeking the services of fertility clinics for traditional surrogacy
arrangements.
- 5.70 It is
unclear how many traditional surrogacies are arranged outside fertility clinics.
The most recent statistics provided by
Oranga Tamariki for the year ended 30
June 2021 report that 10 of the 22 social worker reports provided to the Family
Court as part
of the adoption process were for traditional surrogacy
arrangements.100
Option 2: Enable people to apply directly to ECART
- 5.71 Because
some traditional surrogacy arrangements are not facilitated by a fertility
clinic, another option is to enable people
to apply directly to ECART for
approval without involving a fertility clinic. This could make the ECART process
more accessible,
thereby
- Advisory
Committee on Assisted Reproductive Technology ACART Advice and Guidelines for
Gamete and Embryo Donation and Surrogacy (June 2021) at [2] and [9].
- Advisory
Committee on Assisted Reproductive Technology ACART Advice and Guidelines for
Gamete and Embryo Donation and Surrogacy (June 2021) at [140]–[142].
Thirty-four submissions were received across two rounds of consultation (in 2017
and 2019), and
of those, 31 supported the proposal and three opposed it.
- Michael
Gorton Helping Victorians create families with assisted reproductive
treatment: Final Report of the Independent Review of Assisted Reproductive
Treatment (Victorian Department of Health and Human Services, Melbourne, May
2019) at 121–122.
- Advisory
Committee on Assisted Reproductive Technology ACART Advice and Guidelines for
Gamete and Embryo Donation and Surrogacy (June 2021) at [135] and
[138].
- Advisory
Committee on Assisted Reproductive Technology ACART Advice and Guidelines for
Gamete and Embryo Donation and Surrogacy (June 2021) at [139].
- Advisory
Committee on Assisted Reproductive Technology ACART Advice and Guidelines for
Gamete and Embryo Donation and Surrogacy (June 2021) at [139].
- Email
from Oranga Tamariki | Ministry of Children to Te Aka Matua o te Ture | Law
Commission regarding domestic and international
surrogacy data (16 July
2021).
extending the protective framework to more people. It
may also reduce some of the financial cost to intended parents as they
wouldn’t
have to pay a fertility clinic to make the application for
them.
- 5.72 However,
this option would present a significant departure from the way the current
regulatory system operates. It could significantly
increase ECART’s
workload, not only in terms of the number of applications it receives but also
in terms of its administration
of the application process. Currently, there
are only three fertility clinics in Aotearoa New Zealand that make applications
to ECART, each of which is experienced in the process and its
requirements. Permitting applicants to apply directly to ECART
would have
implications for ECART’s resourcing and funding. It might also be
difficult for applicants to arrange the necessary
counselling, as often
counsellors with experience in surrogacy arrangements are linked to one of the
three fertility clinics.
Safeguards would also need to be put in place to
ensure that ECART is given full and complete information (for example,
lawyers,
counsellors and medical experts could be required to submit their
reports directly to ECART).
QUESTIONS
|
|
Q9
|
Do you agree with the issues we have identified with the approval process
for
|
surrogacy arrangements? Are there other issues we should consider?
|
Q10
|
Do you agree with our preliminary view that gestational surrogacy
arrangements
|
should continue to require ECART approval? If not, please explain your
views.
|
Q11
|
Which options to improve the ECART process do you prefer? Are there
other
|
changes that should be made?
|
Q12
|
Do you agree with our preliminary view that parties to a traditional
surrogacy
|
arrangement should be able to access the same ECART process as parties to a
gestational surrogacy arrangement?
|
Q13
|
Do you prefer Option 1 or Option 2 to enable parties in a traditional
surrogacy
|
arrangement to access the ECART process, or is there another option we
should consider?
|
CHAPTER 6
Financial
support for surrogates
IN THIS CHAPTER, WE CONSIDER:
- the financial
support available to surrogates in Aotearoa New Zealand; and
- issues with the
current law and options for reform.
THE CURRENT LAW
Payments
to surrogates
- 6.1 Section 14
of the Human Assisted Reproductive Technology Act 2004 (HART Act) addresses the
legality of making payments in a surrogacy
arrangement.
- 6.2 Section
14(3) provides that any exchange of “valuable consideration” for a
person’s participation in a surrogacy
arrangement is prohibited. A breach
of section 14(3) is punishable by imprisonment for a term not exceeding one year
or a fine not
exceeding
$100,000 or both.1
- 6.3 This means
that it is illegal for intended parents to give and surrogates to receive
“valuable consideration”.
- 6.4 Payment of a
narrow range of costs is expressly permitted under section 14(4) but
only:
(a) to the provider concerned for any reasonable and necessary
expenses incurred for:
(i) collecting, storing, transporting or using a human embryo or human
gamete;
(ii) counselling one or more parties in relation to the surrogacy
agreement;
(iii) insemination or in vitro fertilisation;
(iv) ovulation or pregnancy tests; and
(b) to a legal adviser for providing independent legal advice to the
surrogate.
1 Human Assisted
Reproductive Technology Act 2004, s 14(5).
- 6.5 The HART Act
does not make provision for any payments to the surrogate, including for any
other costs that might be incurred by
the surrogate because of the surrogacy
arrangement.
What
does the prohibition on “valuable consideration” mean?
- 6.6 The meaning
of “valuable consideration” is unclear. It is not comprehensively
defined in the HART Act, but it includes
“an inducement, discount, or
priority in the provision of a service”.2
- 6.7 There is
limited case law on the meaning of valuable consideration in the context of the
HART Act,3 and to our
knowledge, no one has ever been prosecuted under section 14.
- 6.8 By
criminalising the exchange of valuable consideration, Parliament sought to
prohibit commercial surrogacy in Aotearoa New Zealand.4 Beyond that, however, the
legislative history reveals little attention was given to this provision.
- 6.9 It does not
appear that section 14(3) was intended to prevent the payment of the
surrogate’s reasonable expenses incurred
as a result of a surrogacy
arrangement. For example, in 2002, the Minister of Health confirmed that
intended parents should continue
to be able to pay a surrogate’s
“necessary expenses” related to pregnancy and childbirth under the
proposed legislation
on assisted human reproduction. 5 This would have continued the
existing approach established in draft guidelines issued in 1997 by the National
Ethics Committee on
Assisted Human Reproduction.6 It is unclear why the HART Act
does not expressly permit payment of a surrogate’s reasonable
expenses.
Does
section 14 apply to international surrogacy arrangements?
- 6.10 Section 14
and the prohibition on the exchange of valuable consideration is considered to
have no extraterritorial effect.7
This means that New Zealanders can pursue a
commercial
2 Human Assisted
Reproductive Technology Act 2004, s 5 (definition of “valuable
consideration”).
- Only
three cases refer to s 14: Re an application by BWS to adopt a child
[2011] NZFLR 621 (FC); Re an application to adopt a child by SCR and MCR
[2012] NZFC 5466; and Re an application to adopt a child, Kennedy
[2014] NZFC 2526, [2014] NZFLR 797.
- The
heading of s 14 refers to “prohibition of commercial surrogacy
arrangements”, and s 14 has been interpreted as prohibiting
commercial
surrogacy in Re an application to adopt a child by SCR and MCR [2012]
NZFC 5466 at [59]; and Re an application to adopt a child, Kennedy [2014]
NZFC 2526, [2014] NZFLR 797 at [34]. See also Human Assisted Reproductive
Technology Bill 2004 (195-2) (select committee report) at 12.
- Ministries
of Justice and Health briefing to Minister of Health “Policy Decisions
Required for HART SOP” (1 Nov 2002)
at (j) including annotations by
Minister of Health (Obtained under Official Information Act 1982 Request to the
Ministry of Justice)
as cited in Betty-Ann Kelly “Compensation for
Surrogates: Doing Public Policy” in Annick Masselot and Rhonda Powell
(eds)
Perspectives on Commercial Surrogacy in New Zealand: Ethics, Law,
Policy and Rights (Centre for Commercial & Corporate Law, Te Whare
Wānanga o Waitaha | University of Canterbury, Christchurch, 2019) 25 at
32,
n 33.
- The
guidelines were to remain in draft until legislation on assisted human
reproduction was enacted: National Ethics Committee on
Assisted Human
Reproduction Annual Report to the Minister of Health for the year ending 31
December 2001 (June 2002) at 3 and Appendix 5: Draft guidelines for
non-commercial surrogacy using IVF as treatment.
- See
Debra Wilson “Surrogacy in New Zealand” [2016] NZLJ 401 at 409; and
Alison Douglass and Michael Legge “Regulating Surrogacy in New Zealand:
Evolving Policy and Cautious Liberalism
under the HART Act” in Annick
Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New
Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 1 at 18–19.
surrogacy arrangement offshore in a jurisdiction where the exchange of valuable
consideration is legal. International surrogacy arrangements
are discussed in
Chapter
9.
Availability
of parental leave and parental leave payments
- 6.11 The
Parental Leave and Employment Protection Act 1987 does not expressly provide for
surrogacy arrangements. Whether surrogates
and intended parents are entitled to
take parental leave from their employment and to receive parental leave payments
from the government
therefore depends on how the Act’s provisions are
interpreted in the context of surrogacy.
- 6.12 Under the
Parental Leave and Employment Protection Act, a “primary carer” can
be eligible for parental leave 8
and parental leave payments 9
depending on certain employment thresholds being met.
- 6.13 An intended
parent would qualify for parental leave and parental leave payments as they
would satisfy the definition of primary
carer (a person “who takes
permanent primary responsibility for the care, development, and upbringing of a
child”).10
- 6.14 It is
unclear whether a surrogate can also qualify for parental leave and parental
leave payments. One possible interpretation
is that both the surrogate and an
intended parent can qualify, as the definition of primary carer also includes
the person who
is pregnant or has given birth.11 However, Te Tare Taake |
Inland Revenue guidance suggests that paid parental leave is only available
“[i]f you take time off
work to care for your baby or a child who has come
into your care”.12 As
the intended parents will typically care for the child from birth, they
qualify, but some suggest the surrogate does not.13
- 6.15 A surrogate
would, however, qualify for taking up to 10 days’ unpaid special leave
for reasons connected to the pregnancy,
as this entitlement applies to any
“female employee who is pregnant”.14
- Parental
Leave and Employment Protection Act 1987, pt 1 provides for primary carer leave
of up to 26 weeks, and pt 3 provides for
extended leave of up to 52 weeks,
including primary carer leave taken. We refer to both as “parental
leave” in this
chapter.
9 Parental Leave and
Employment Protection Act 1987, pt 7A.
- Parental
Leave and Employment Protection Act 1987, s 7 (1)(c). See also Bell v
Ministry of Business, Innovation and Employment [2013] NZERA Wellington 68
at [23].
- Parental
Leave and Employment Protection Act 1987, s 7(1)(a). We note that this reference
refers to the female who is pregnant or
has given birth as the “biological
mother”. However, guidance from the Employment New Zealand website does
not mention
the “biological” requirement when describing what
primary carer means and only refers to a woman who is pregnant or who
has given
birth: See Employment New Zealand “Parental Leave and Payment Eligibility
table”
<www.employment.govt.nz> at
2; and Employment New Zealand “Parental
leave eligibility”
<www.employment.govt.nz>.
Our view is that the use of the term “biological mother” does not
exclude gestational surrogates who are not the
child’s genetic parent, but
this interpretation remains a possibility.
12 Te Tare Taake | Inland Revenue
“Who can get paid parental leave” <www.ird.govt.nz>.
- See
Annick Masselot and Ira Schelp “Parental Leave and Surrogacy: Caring is
Everything” in Annick Masselot and Rhonda
Powell (eds) Perspectives on
Commercial Surrogacy in New Zealand: Ethics, Law, Policy and Rights
(Centre for Commercial & Corporate Law, Te Whare Wānanga o Waitaha
| University of Canterbury, Christchurch, 2019) 137 at
147. See also
Anthony Drake “Surrogacy – who gets what?” (20 June 2018) Wyn
Williams <www.wynnwilliams.co.nz>.
14 Parental Leave and Employment
Protection Act 1987, s 15.
- 6.16 It does not
appear that a surrogate’s partner would be entitled to take
partner’s leave from employment, because
this is only available if the
partner “assumes or intends to assume responsibility for the care of that
child”.15
ISSUES
- 6.17 The
current law is unclear about what financial support intended parents can provide
to surrogates and what government support
(in the form of parental leave and
parental payments) is available to surrogates. This may leave surrogates out of
pocket, may create
barriers for women considering becoming surrogates in
Aotearoa New Zealand and may place unnecessary stress on the parties in the
surrogacy
arrangement.
The
current law is uncertain
Uncertainty around costs intended parents can cover
- 6.18 The
prohibition on the exchange of valuable consideration, alongside the narrow
range of payments expressly permitted under section
14(4), creates uncertainty
around what costs intended parents can cover.
- 6.19 This
uncertainty is evidenced in a range of different contexts:
(a) There
is no agreement among academics as to what the legal position is. Views range
from section 14 being “frequently understood
to mean that a surrogate can
be given reasonable expenses”16 to “[p]ayments to the
surrogate for her reasonable expenses are not permitted”.17
(b) The Ethics Committee on Assisted Reproductive Technology (ECART) and the
Advisory Committee on Assisted Reproductive Technology
(ACART) have previously
disagreed on what costs can be met under section 14. 18 The primary example is
whether life insurance premiums on policies for surrogates can be paid by the
intended parents. In 2007, ECART
took the view that payments for life insurance
could be met by the intended parents,19 but ACART then advised ECART
that its view, based on legal advice, was that this contravened section 14.20 ACART considered that a
change to the HART Act was necessary to allow intended parents to pay for
15 Parental Leave and
Employment Protection Act 1987, s 17(1)(a).
- Alison
Douglass and Michael Legge “Regulating Surrogacy in New Zealand: Evolving
Policy and Cautious Liberalism under the HART
Act” in Annick Masselot and
Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New Zealand:
Ethics, Law, Policy and Rights (Centre for Commercial & Corporate Law,
Te Whare Wānanga o Waitaha | University of Canterbury, Christchurch, 2019)
1 at 17.
- Rhonda
Powell “Exploitation of Surrogate Mothers in New Zealand” in Annick
Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New
Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 57 at
57. See also Debra Wilson “Reflecting on
surrogacy: perspectives of family lawyers” (2018) 9 NZFLJ 67 at 67 and
71.
18 The roles of these
committees are described in Chapter 5 of this Issues Paper.
19 Ethics Committee on Assisted
Reproductive Technology minutes of 26 July 2007 at [4] (application E07/14).
- Ethics
Committee on Assisted Reproductive Technology minutes of 20 November 2007 at
[16]; and Advisory Committee on Assisted Reproductive
Technology minutes of 14
September 2007 at [11(iv)].
life insurance for the surrogate.21
ECART also sought legal advice on the matter,22 and a consensus appears to
have been reached,23 with
ECART continuing to consider applications where intended parents put life
insurance in place for the surrogate.24 Regardless, the contrary
views illustrate the uncertainty inherent in the current
law.
(c) The ACART Guidelines25 do not address what costs can
be met by intended parents. On occasion, ECART has approved applications
involving, or has recommended
the parties consider, payments for income
protection insurance,26
disability insurance27 and health
insurance.28 On one occasion,
ECART approved an application in which intended parents had established an
independent bank account for the surrogate
to claim pregnancy-related
expenses.29 Dr Ruth Walker
and Dr Liesl van Zyl observed that, in practice, it appears that ECART’s
emphasis “is on what the payment
is for, rather than who receives it, and
that an expansive interpretation of s 14 is the custom”.30
(d) Despite potentially falling outside of ECART’s remit, guidance has
been sought from ECART on what payments or benefits are
permissible under
section 14, indicating uncertainty about what is permitted under the law.31
- 6.20 The
Surrogacy Survey also indicated uncertainty in the wider community. Many
respondents believed that the current law allows
for more reimbursement of the
surrogate’s costs than is explicitly permitted under the HART Act.32 Only five per cent of
respondents thought the surrogate could not receive any money, while 19 per
cent
21 Advisory Committee on
Assisted Reproductive Technology minutes of 14 December 2007 at [14(iv)].
- Ethics
Committee on Assisted Reproductive Technology minutes of 20 November 2007 at
[16]; Advisory Committee on Assisted Reproductive
Technology minutes of 14
September 2007 at [11(iv)]; and Ethics Committee on Assisted Reproductive
Technology minutes of 26 April
2018 (Correspondence).
- At
a joint meeting between ECART and ACART in March 2008, payment for life
insurance by intended parents was discussed, and ACART
noted an “agreed
process for resolution” in its next meeting: Ethics Committee on Assisted
Reproductive Technology minutes
of 11 March 2008 at [9]; and Advisory Committee
on Assisted Reproductive Technology minutes of 14 March 2008 at [11(ii)].
- See,
for example, Ethics Committee on Assisted Reproductive Technology minutes of 11
February 2021 at [5] (application E21/002).
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020).
- See
Ethics Committee on Assisted Reproductive Technology minutes of 18 September
2014 at [7] (application E14/151); 30 July 2015 at
[5] (application E15/62); 3
March 2016 at [10] (application E16/14); and 3 November 2016 at [15]
(application E16/96).
27 See
Ethics Committee on Assisted Reproductive Technology minutes of 3 March 2016 at
[10] (application E16/14).
- See
Ethics Committee on Assisted Reproductive Technology minutes of 3 December 2015
at [4] (application E15/108); and Ethics Committee
on Assisted Reproductive
Technology minutes of 12 June 2018 at [26] (application
E18/59).
29 Ethics Committee
on Assisted Reproductive Technology minutes of 30 May 2013 at [9] (application
E13/16).
30 Ruth Walker and Liezl van Zyl
“Surrogacy and the law: three perspectives” (2020) 10 NZFLJ 9 at
10.
- Advice
has been sought in the past from a fertility clinic on the payment of travel
costs to attend medical appointments and from
Child, Youth and Family on what
constitutes “reasonable expenses” in surrogacy: Ethics Committee on
Assisted Reproductive
Technology minutes of 10 May 2012 at [13]
(Correspondence); and 27 September 2012 at [14] (Correspondence).
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Public Perceptions Survey (Te Whare Wānanga o
Waitaha | University of Canterbury, May 2020) vol 3 at 15.
thought general expenses (maternity clothes, supplements etc) could be paid for
and 17 per cent thought loss of income could be paid
for.
- 6.21 Uncertainty
was also evident in our initial consultation with intended parents, surrogates,
fertility clinics and lawyers. Intended
parents and surrogates told us that they
received different advice on what they can and cannot do. Lawyers were equally
unclear on
what section 14 means. One lawyer with significant experience
advising on surrogacy arrangements told us:
It’s hard to know
what valuable consideration actually means. For most people it seems to come
down to whether a fee is paid
but there are different views. For instance, some
people think that it covers maternity clothes and reimbursement for expenses but
that is all. There’s a risk of putting so much into the meaning of the
words you start to wonder what they actually mean. At
the end of the day, if
you’re not going to allow commercial surrogacy you need to be clear about
what you do allow.
Impact of uncertainty on the parties’
relationships
- 6.22 The
uncertainty in the current law may place unnecessary stress on the relationship
between intended parents and surrogates.
- 6.23 While
intended parents may want to support their surrogate, they might feel they
need to opt for a conservative approach
for fear that, if they are
discovered breaking the law, they could be prosecuted and their application to
adopt any resulting child
could be affected. This concern was evident in our
initial consultations. One intended parent described how he and his husband
constantly thought about what could happen if they paid their surrogate or
reimbursed her for expenses and she ended up deciding
she wanted to keep
the child. They were concerned she could claim they broke the law by paying or
reimbursing her, which they
feared could mean they would not be able to
proceed with an adoption and they could be convicted of committing a criminal
offence.
- 6.24 This leaves
surrogates financially vulnerable. Several surrogates we spoke with told us they
felt uncomfortable about asking
intended parents for things they needed during
pregnancy. One surrogate said that having a lawyer say that the intended parents
could
not purchase maternity clothing or pre-natal vitamins “made things
difficult”. Another surrogate we spoke with had a
difficult pregnancy so
the intended parents started paying for a household cleaner. However, neither
the intended parents nor the
surrogate and her partner felt it was appropriate
for any further support to be provided. They had been told by their fertility
clinic
that any payments or spending would need to be reported to ECART.
- 6.25 A fertility
clinic representative we spoke with mentioned one surrogacy arrangement where
the relationship between the surrogate,
her partner and the intended parents
soured significantly due to the costs incurred by the surrogate and her family
when the surrogate
had to take time off work due to the pregnancy.
Impact of uncertainty in relation to parental leave and
parental leave payments
- 6.26 In
addition to uncertainty under the HART Act, the law in relation to parental
leave and parental leave payments is also uncertain.
It is unclear to intended
parents and surrogates what government support is available, which in turn makes
it difficult to quantify
the impact of the surrogacy arrangement on the
surrogate and her family. This was evident
in our initial consultation, with surrogates and intended parents expressing
confusion as to what their entitlements were under
the current
law.
- 6.27 The current
uncertainty leaves surrogates in a vulnerable position. Their medical needs and
physical recovery may be overlooked
if they are treated differently to other
birthing parents.33
The
current law may leave surrogates out of pocket
- 6.28 The
uncertainty caused by the current law means that surrogates and their families
might not be properly reimbursed for all the
costs they incur because of the
surrogacy arrangement.
- 6.29 This was a
strong theme in our initial consultation with intended parents, surrogates and
surrogates’ partners. One surrogate’s
partner told us that a factor
in choosing a lawyer and a counsellor was how far they would have to travel for
appointments as they
were told that they could not be reimbursed for time and
money spent travelling. That partner also said “when you’re
pregnant, you generally spend more” on lots of things, including food,
vitamins, clothing and travel.
- 6.30 Intended
parents often said they wished they were able to provide more financial support
to their surrogate. One intended parent
told us:
No surrogate should
be having to be out of pocket because she’s doing this, and that includes
being out of pocket for her children.
You should pay for all the things you
would have been paying for if you were pregnant. It’s not difficult. The
things you should
be paying for are really obvious.
- 6.31 The law in
Aotearoa New Zealand is out of step with comparable jurisdictions, where there
is usually a clear statement that the
payment of reasonable costs is permitted.
This is often interpreted in line with the general proposition that provision
for expenses
should ensure “the surrogate neither gains financially from
the pregnancy in any real sense, nor is left to incur the costs
related to
it”.34
The
current law creates barriers for women considering becoming surrogates in
Aotearoa New Zealand
- 6.32 The
uncertainty surrounding the payment of costs and parental leave entitlements, as
well as the prohibition on the payment of
valuable consideration, creates
barriers for women considering becoming surrogates in Aotearoa New Zealand. One
fertility clinic
representative we spoke with in initial consultation said that
the current law makes it close to impossible to find people willing
to be
surrogates outside of family members and close friends.
- See
discussion in Annick Masselot and Ira Schelp “Parental Leave and
Surrogacy: Caring is Everything” in Annick Masselot
and Rhonda Powell
(eds) Perspectives on Commercial Surrogacy in New Zealand: Ethics, Law,
Policy and Rights (Centre for Commercial & Corporate Law, Te Whare
Wānanga o Waitaha | University of Canterbury, Christchurch, 2019) 137 at
147–148.
34 Law
Commission of England and Wales and Scottish Law Commission Building families
through surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at [14.9]. See
also South Australian Law Reform Institute Surrogacy: A Legislative Framework
– A Review of Part 2B of the Family Relationships Act 1975 (SA)
(Report 12, 2018), R52.
- 6.33 These
issues have also “served to drive intended parents to resort to
[international] commercial surrogacy”. 35 This was reflected in our
initial consultations with intended parents who had pursued international
surrogacy. Some intended parents
told us that the prohibition on commercial
surrogacy in Aotearoa New Zealand, uncertainty around the payment of costs and
the consequential
impact these factors have on women considering becoming
surrogates were factors in their decision to pursue commercial surrogacy
offshore.
OPTIONS FOR REFORM
- 6.34 We
do not think the current law relating to financial support for surrogates is
meeting the needs and expectations of New Zealanders
or protecting and promoting
the rights and interests of people involved in surrogacy arrangements.
- 6.35 Below we
consider three different options for reform:
(a) Option 1: Clarify
and expand the list of costs that can be paid in surrogacy.
(b) Option 2: Clarify the law with respect to surrogates’ entitlements
to post-birth recovery leave and payments.
(c) Option 3: Permit intended parents to pay surrogates a fee.
- 6.36 Our
preliminary view is to support Options 1 and 2 but not Option 3. However, these
are preliminary views only and we are interested
in hearing your
views.
Option
1: Clarify and expand the list of costs that can be paid in surrogacy
- 6.37 We think
that the law should clarify that intended parents are able to pay or reimburse a
surrogate’s reasonable costs
in relation to a surrogacy arrangement.
- 6.38 We also
think that the law should provide clear guidance on what constitutes reasonable
costs by setting out categories of permitted
costs that can be paid or
reimbursed.
- 6.39 We consider
that this option will:
(a) provide greater certainty about what
support intended parents can provide their surrogate and a clear, structured
process for
the parties to follow;
(b) reduce barriers for women considering becoming a surrogate in Aotearoa
New Zealand and support intended parents to enter surrogacy
arrangements in
Aotearoa New Zealand rather than offshore, as surrogates would not be left
financially disadvantaged by the arrangement;
(c) likely receive broad support as it is consistent with the views
expressed by people we spoke with during our initial consultation,
with
previous attempts to reform the
- Rhonda
Powell “Exploitation of Surrogate Mothers in New Zealand” in Annick
Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New
Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 57 at
73–74. See also Debra Wilson and Julia
Carrington “Commercialising Reproduction: In Search of a Logical
Distinction between
Commercial, Compensated, and Paid Surrogacy
Arrangements” (2015) 21 NZBLQ 178 at 182.
HART Act 36 and with the
results of the Surrogacy Survey, which found that, of respondents who thought
domestic surrogacy should be legal, 61
per cent supported the surrogate being
paid for actual expenses only, 31 per cent supported the surrogate being paid
for her time
and service and seven per cent thought that the surrogate should
receive no money;37
and
(d) align with the approach taken in Australia38 and Canada,39 where a more specific list of
costs is provided for in legislation, and with the approach being considered in
England, Wales and Scotland40
as well as in Ireland.41
What categories of permitted costs should be provided
for?
- 6.40 We
think that legislation should prescribe categories of permitted costs. This
would set the parameters of the surrogate’s
costs that can be covered
under any surrogacy arrangement.
- 6.41 There would
be no legal obligation to reimburse or pay for some or all permitted costs.
Rather, intended parents and surrogates
should be able to make their own
agreement as to which permitted costs the intended parents will pay for.
- 6.42 Table 2
below compares the categories of permitted costs explicitly provided for in
legislation in Australia and Canada.
- Improving
Arrangements for Surrogacy Bill 2021 (undrawn Member’s Bill, Tāmati
Coffey MP), cl 6; Petition of Christian John
Newman “Update the Adoption
Act 1955 to simplify and speed up the process for adoption” (2017/409,
presented to Parliament
3 October 2019); and Care of Children (Adoption and
Surrogacy Law Reform) Amendment Bill 2012 (undrawn Member’s Bill, Kevin
Hague MP), cl 220.
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Public Perceptions Survey (Te Whare Wānanga o
Waitaha | University of Canterbury, May 2020) vol 3 at 64. Figures are rounded
to the nearest percentage
point.
- Surrogacy
Act 2010 (NSW), s 7; Assisted Reproductive Treatment Regulations 2019 (Vic), reg
11; Surrogacy Act 2010 (Qld), s 11; Surrogacy Act 2008 (WA), s 6; Surrogacy Act
2019 (SA), s 11; and Surrogacy Act 2012 (Tas), s 9. Legislation in Australian
Capital Territory simply allows the payment of expenses connected with a
pregnancy agreement or the birth
or care of a child born as a result of that
pregnancy: Parentage Act 2004 (ACT), ss 40 and 41. Surrogacy is not provided for
in legislation in the Northern
Territory.
39 Reimbursement
Related to Assisted Human Reproduction Regulations SOR/2019-193 (Can), reg
4.
- In
England, Wales and Scotland, a general provision allowing for “expenses
reasonably incurred” to be paid under a surrogacy
arrangement has been
criticised for the lack of transparency as to what is included within expenses:
Law Commission of England and
Wales and Scottish Law Commission Building
families through surrogacy: a new law – A joint consultation paper
(CP244/DP167, 2019) at [14.23].
- General
Scheme of the Assisted Human Reproduction Bill 2017, head 41(5); and Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(Department of Children, Equality, Disability, Integration and Youth,
Ireland, December 2020) at 20–21.
TABLE 2: CATEGORIES OF PERMITTED COSTS IN OTHER JURISDICTIONS
|
Permitted costs
|
NSW
|
Victoria
|
Queensland
|
Western Australia
|
South Australia
|
Tasmania
|
Canada
|
Medical, legal and counselling
|
✓
|
✓
|
✓
|
✓
|
✓
|
✓
|
✓
|
Travel and accommodation
|
✓
|
✓
|
✓
|
|
|
✓
|
✓
|
Care of dependants
|
|
✓
|
|
|
|
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✓
|
Groceries
|
|
|
|
|
|
|
✓
|
Cost of obtaining any product or service recommended by health-care
provider
|
|
|
|
|
|
|
✓
|
Maternity clothes
|
|
|
|
|
|
|
✓
|
Pre-natal exercise classes
|
|
|
|
|
|
|
✓
|
Insurance premiums (life, health and disability)
|
✓
|
✓
|
✓
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✓
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|
✓
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✓
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Lost earnings
|
✓
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✓
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✓
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✓
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✓
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✓
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✓
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Other reasonable out-of-pocket costs
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✓
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✓
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✓
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✓
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|
- 6.43 Having
considered what is happening in practice, feedback received during our initial
consultation and the approaches in other
jurisdictions, we think that the
following categories of permitted costs should be
specified:
(a) Medical treatment, legal advice and counselling
(already expressly permitted under section 14(4) of the HART Act).
(b) Travel, including the cost of transport, parking, meals and accommodation
for the surrogate, her partner and any dependants.
(c) Care of the surrogate’s dependants.
(d) Products or services recommended by the surrogate’s health provider
in relation to pregnancy, birth or post-partum recovery,
including physiotherapy
and other therapeutic services.
(e) Groceries.
(f) Maternity clothes.
(g) Loss of income, less any post-birth recovery leave payments
received (see Option 2 below) and subject to a statutory time limit.
For
example, in Australia, loss of income payments are capped at two months (but
this can be extended on medical grounds related
to pregnancy or birth).42 If the surrogate’s
partner has to take unpaid leave because of the surrogacy, this loss should also
be able to be met under
a surrogacy arrangement.
(h) Life, health and disability insurance, including premiums and increases
in premiums if the surrogate already has insurance.
(i) Other reasonable out-of-pocket expenses incurred in relation to the
surrogacy arrangement, such as costs relating to housework
services or care of
pets.
What process should intended parents and surrogates
follow?
- 6.44 We
think that the parties should discuss and agree on what costs will be covered by
the intended parents prior to conception.
This could be agreed in counselling
completed as part of the application to ECART. The ECART process is discussed in
detail in Chapter
5.
- 6.45 We are
interested in views on whether any other process requirements should be imposed
on the parties to ensure that all payments
are made for costs that are
reasonable and are actually incurred. For example, the law could require the
surrogate to keep all receipts
or all receipts above a certain amount and
provide these to the intended parents.
Should agreements to pay costs be enforceable?
- 6.46 Surrogacy
arrangements are not enforceable in Aotearoa New Zealand 43 or in comparable
jurisdictions.44 However,
some jurisdictions make an exception to ensure that intended parents pay a
surrogate’s costs and expenses relating
to the surrogacy arrangement. As
the Commission explained in 2000:45
Common sense seems to
dictate that an agreement to pay the surrogate’s expenses should be
enforceable. For example, if a surrogate
mother becomes pregnant and incurs
certain expenses as a result of her agreement with the commissioning parents the
surrogate mother
should be entitled to pursue the commissioning parents for
costs incurred.
- 6.47 For this
reason, the law in Australia expressly states that, while surrogacy arrangements
are unenforceable, an obligation under
a surrogacy arrangement to pay or
reimburse the surrogate’s costs is enforceable, but often only if the
arrangement was entered
into
- Surrogacy
Regulations 2020 (SA), reg 5; Surrogacy Act 2010 (NSW), s 7(3)(e); Assisted
Reproductive Treatment Regulations 2019 (Vic), reg 11(1)(e); Surrogacy Act 2010
(Qld), s 11(2)(f); Surrogacy Act 2008 (WA), s 6(3)(b); and Surrogacy Act 2012
(Tas), s 9(3)(f).
43 Human
Assisted Reproductive Technology Act 2004, s 14(1).
44 Legislation in Australia, the United
Kingdom and Canada all provide that surrogacy arrangements are
unenforceable.
- Te
Aka Matua o te Ture I Law Commission Adoption and Its Alternatives: A
Different Approach and a New Framework (NZLC R65, 2000) at [544]. We note
that the Commission took a similar position in Te Aka Matua o te Ture I Law
Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
[7.12].
before the surrogate became pregnant.46 This has also been
provisionally proposed for England, Wales and Scotland as well as in Ireland.47 The Law Commission of England
and Wales and the Scottish Law Commission explain that making the payment of
costs enforceable would
avoid any dispute over money being determined indirectly
through provisions on legal parenthood (for example, by a surrogate withholding
her consent to the transfer of legal parenthood until her costs are paid).48
- 6.48 However,
making agreements to pay costs enforceable might be considered unfair if other
aspects of the surrogacy arrangement
are not enforceable. If a surrogate changed
her mind and wanted to keep the child, for example, she could do so while
keeping any
payments made by the intended parents to cover the costs of the
pregnancy.
- 6.49 A few
jurisdictions (Queensland, Tasmania and South Australia) have sought to respond
to this concern by providing that an agreement
to pay a surrogate’s costs
is not enforceable if a surrogate does not relinquish the child or refuses to
consent to the transfer
of legal parenthood. 49 However, this approach starts
to blur matters of legal parenthood and payments and may unduly risk a surrogacy
arrangement being considered
to constitute the sale of a child under
international human rights law.50
The United Nations (UN) Special Rapporteur has previously recommended that
all payments made to the surrogate should be non-reimbursable
except in cases of
fraud.51 The Verona
Principles similarly provide that the surrogate should be able to confirm or
revoke her consent to the intended parents
having exclusive legal parenthood
“without any financial consequences as to either payments or
reimbursements related to the
surrogacy arrangement”.52
- 6.50 We are
interested in your views on whether agreements in relation to the payment of a
surrogate’s costs should be
enforceable.
Option
2: Clarify the law with respect to surrogates’ entitlements to post-birth
recovery leave and payments
- 6.51 The second
option we have considered relates to a surrogate’s entitlement to
government support in relation to the pregnancy.
- Surrogacy
Act 2010 (NSW), s 6; Assisted Reproductive Treatment Act 2008 (Vic), s 44(3);
Surrogacy Act 2010 (Qld), s 15; Surrogacy Act 2008 (WA), s 7; Surrogacy Act
2012 (Tas), s 10; and Surrogacy Act 2019 (SA), s
13.
47 Law Commission of
England and Wales and Scottish Law Commission Building families through
surrogacy: a new law
- – A
joint consultation paper (CP244/DP167, 2019) at [15.95]–[15.96]. In
respect of Ireland, see General Scheme of the Assisted Human Reproduction Bill
2017,
head 41(3).
48 Law
Commission of England and Wales and Scottish Law Commission Building families
through surrogacy: a new law
- – A
joint consultation paper (CP244/DP167, 2019) at
[15.92].
49 Surrogacy Act 2010
(Qld), s 15(2)(b); Surrogacy Act 2012 (Tas), s 10(2)(c); and Surrogacy Act 2019
(SA), s 13(3).
- Similar
concerns were expressed in Law Commission of England and Wales and Scottish Law
Commission Building families through surrogacy: a new law – A joint
consultation paper (CP244/DP167, 2019) at [15.96]–[15.97].
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/HRC/37/60 (15 January 2018) at [72] and
[77(c)]. These comments were made in the context of payments in a commercial
surrogacy
arrangement, but we consider the point is equally applicable to the
payment of costs in a non-commercial surrogacy arrangement.
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [10.5]. See also at
[14.7]–[14.8].
- 6.52 We think
that surrogates should be entitled to a period of unpaid employment leave (birth
recovery leave) and government payments
(birth recovery payments) during that
period, provided they meet the employment thresholds that apply for parental
leave and parental
leave payments. 53 This could be available for a
fixed period and could start before birth on the same grounds as parental leave.
Birth recovery payments
should be calculated at the same rate as parental leave
payments under the Parental Leave and Employment Protection Act.
- 6.53 This option
would meet the surrogate’s medical needs for recovery from pregnancy and
childbirth and align the surrogate’s
entitlements with those enjoyed by
other pregnant people. It would not affect intended parents’ entitlements
to parental leave
and parental leave payments.
- 6.54 This option
is consistent with the approach in comparable jurisdictions. In Australia, a
surrogate may be eligible to receive
a parental leave payment for up to 18 weeks
for the purpose of maternal recovery.54 In England, Wales and
Scotland, surrogates are treated in the same way as women who carry their own
children.55
- 6.55 This option
is also consistent with recent amendments to the Holidays Act 2003, which
recognise that surrogates, their partners
and intended parents are each entitled
to three days’ bereavement leave in the event of a miscarriage or
stillbirth.56
- 6.56 We are
interested in your views on how long surrogates should be eligible for birth
recovery leave and birth recovery payments.
Different options include the
following:
(a) 26 weeks, to align with current entitlements for
parental leave payments. This would be the simplest approach as the Parental
Leave and Employment Protection Act could simply be amended to clarify that
a surrogate is a primary carer for the purposes
of that Act, regardless of
whether an intended parent is also eligible as a primary carer. However,
parental leave is concerned not
only with medical needs for recovery from
pregnancy and childbirth but also with the primary care of a child. It may
therefore
be an inappropriate comparison.
(b) 12 weeks, to align with the maximum period of earnings compensation for
live-organ donors while recuperating from surgery, discussed
below.
(c) Six weeks, to align with the post-partum period recognised by the
Ministry of Health, during which birth parents receive free
maternity care.
Surrogates who are still unable to work after six weeks could be compensated for
lost earnings under the surrogacy
arrangement under Option 1 above.
- 6.57 We also
note there are other circumstances, such as adoption other than in the context
of surrogacy, where the person who has
given birth is different to the person
who will provide primary care for the child (and who is not their partner).
Parental leave
and
53 Parental Leave and
Employment Protection Act 1987, s 2BA.
- Paid
Parental Leave Rules 2021 (Cth), s 13; and Australian Government Paid
Parental Leave Guide (Version 1.70) (10 May 2021) at [1.1.S.100 Surrogacy
arrangement].
55 Law
Commission of England and Wales and Scottish Law Commission Building families
through surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at [17.6]. A
surrogate in the United Kingdom is eligible for statutory maternity leave from
her employer for up
to 52 weeks by virtue of being pregnant and giving birth.
She may also be entitled to 39 weeks of statutory maternity pay.
56 Holidays Act 2003, s 69.
parental leave payments in these circumstances are beyond the scope of our
review. However, we note that any recommendations we make
to cater for surrogacy
could be equally appropriate and workable in those situations.
Alternative approach: aligning surrogacy and live-organ
donation
- 6.58 An
alternative to Option 2 that we have considered, but do not prefer, is to align
surrogacy with live-organ donation.
- 6.59 Like
surrogacy, no “financial or other consideration” can be exchanged
for organs under the Human Tissue Act 2008.57 However, the Compensation for
Live Organ Donors Act 2016 now provides for donors to be compensated 100 per
cent of their calculated
loss of earnings for up to 12 weeks after surgery while
recuperating.58 Live donors
may also be reimbursed for travel and accommodation costs linked with the organ
donor tests and surgery.59
- 6.60 Surrogacy
and live-organ donation could be aligned because both surrogates and organ
donors are financially disincentivised 60 and because, in both
surrogacy and organ transplants, demand outweighs supply.61
- 6.61 However,
organ donation can also be distinguished from surrogacy on the basis that
organ donation facilitates “lifesaving”
treatment, while surrogacy
is “life enabling”. The right to health is a fundamental human
right and clearly envisages
a role for the state in facilitating lifesaving
treatment. It is less clear whether the state has the same role in facilitating
family
building. As we explain in Chapter 3, individuals have rights to found a
family, but this does not extend to an unqualified right
to have a child. We
discuss public funding for fertility treatment associated with surrogacy in
Chapter 10.
- 6.62 Perhaps a
bigger concern with this option is that it would ultimately discriminate between
surrogate pregnancies and other pregnancies
that do not qualify for full
compensation for loss of earnings. With this in mind, we prefer the model
outlined above that would
align surrogates’ entitlements with those of
other birth
parents.
Option
3: Permit intended parents to pay surrogates a fee
- 6.63 The final
option we have considered is whether intended parents should be able to pay
surrogates a fee for their participation
in a surrogacy arrangement. In this
discussion, we use the term “fee” to refer to any payment that is
not for the surrogate’s
reasonable
57 Human Tissue Act 2008,
s 56.
- Compensation
for Live Organ Donors Act 2016, s 10; and Manatū Hauora | Ministry of
Health “Compensation for Live Organ
Donors: Information Pack” (24
March 2021) <www.health.govt.nz>.
Compensation is also available before surgery if the Director-General of Health
is satisfied that certain criteria have been
met: s
12.
59 Manatū Hauora |
Ministry of Health “Compensation for Live Organ Donors: Information
Pack” (24 March 2021)
<www.health.govt.nz>.
- The
purpose of the Compensation for Live Organ Donors Act 2016 is to remove a
financial deterrent to the donation of organs by live
donors: s 3.
- In
Aotearoa New Zealand, there are many more people waiting for an organ transplant
than there are organs available: Manatū Hauora
| Ministry of Health
“Organ donation and transplantation” (8 January 2020) <www.health.govt.nz>. Demand for
surrogates outweighing supply was also emphasised by fertility clinics, intended
parents and surrogates we spoke
with during our initial
consultation.
costs actually incurred (addressed under Option 1). A fee would therefore
include any payments that are described as compensation
for pain and
inconvenience.
- 6.64 The payment
of a fee is typically characterised as “commercial surrogacy”,
although, as we note in Chapter 1, the
precise distinction between commercial
and altruistic surrogacy is unclear, and there is a considerable variation
amongst altruistic
and commercial models. Below we summarise the arguments for
and against permitting intended parents to pay surrogates a fee.
- 6.65 Arguments
in favour of permitting the payment of a fee (in addition to Option 1 and/or
Option 2) include the following:
(a) Simply meeting the
surrogate’s costs does not accurately reflect the role of a surrogate in
caring for the well-being of
the unborn child, the considerable inconveniencies
to her life and to those around her and the necessary risks to her health.62
(b) Other people and organisations involved in surrogacy arrangements are
permitted to charge a fee for their services, including
lawyers and fertility
clinics, so a surrogate should be able to as well.63
(c) Prohibiting surrogates from receiving a fee creates conditions for
exploitation of women because it prevents surrogates from being
treated
fairly.64 Intended parents
may feel payment of a fee ensures fairness and prevents them from feeling
“beholden” to their surrogate.
(d) More women may be willing to act as surrogates if intended parents are
able to pay a fee.65
(e) Permitting payment of a fee would reduce the inconsistency with
international surrogacy arrangements, where the payment of a fee
is common.
- Rhonda
Powell “Exploitation of Surrogate Mothers in New Zealand” in Annick
Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New
Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 57 at
70–71. See also Debra Wilson Rethinking
Surrogacy Laws: Te Kohuki Ture Kopu Whangai – Overview of Report (Te
Whare Wānanga o Waitaha | University of Canterbury, May 2020) at
39.
- See
Ruth Walker and Liezl van Zyl Towards a Professional Model of Surrogate
Motherhood (Palgrave Macmillan, London, 2017) at ix.; and Rhonda Powell
“Exploitation of Surrogate Mothers in New Zealand” in Annick
Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New
Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 57 at
71.
- Rhonda
Powell “Exploitation of Surrogate Mothers in New Zealand” in Annick
Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New
Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 57 at
70. See also Ruth Walker and Liezl van Zyl Towards
a Professional Model of Surrogate Motherhood (Palgrave MacMillan, London,
2017) at 44; and Debra Wilson Rethinking Surrogacy Laws: Te Kohuki Ture Kopu
Whangai – Overview of Report (Te Whare Wānanga o Waitaha |
University of Canterbury, May 2020) at 41.
- Betty-Ann
Kelly “Compensation for Surrogates: Doing Public Policy” in Annick
Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New
Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 25 at
34 and 55–56.
(f) Permitting payment of a fee may encourage intended parents
to enter surrogacy arrangements in Aotearoa New Zealand rather than
offshore.66
- 6.66 There are,
however, strong arguments against permitting the payment of a
fee:
(a) If the government expressly permits surrogates to be paid a
fee, it may risk contravening its international human rights obligations
to
take all appropriate national, bilateral and multilateral measures to prevent
the sale of children.67 This
is because there is a concern that the payment of a fee may increase the risk of
a surrogacy arrangement amounting to the sale
of a child. 68 The Verona Principles
state that the risk arises when “there is a provision of unregulated,
excessive or lump sum ‘reimbursements’
or consideration in any other
form”.69
(b) Payment of a fee may not be in the best interests of the child. While
research into altruistic surrogacy suggests generally positive
outcomes for
surrogate-born children and their families, little research has explored the
impact of commercial surrogacy on children
(see Chapter 2).
(c) Payment of a fee may lead to the exploitation of surrogates by attracting
economically disadvantaged women and raising the question
of whether financial
incentives “might override women’s consideration of the potential
physical and emotional risks they
assume”.70 While exploitation is
generally considered to be a greater concern in developing countries with weak
regulatory protections, it is
nonetheless seen as a “present and
real” risk even in more stable legal systems such as the United Kingdom.71
- Debra
Wilson and Julia Carrington “Commercialising Reproduction: In Search of a
Logical Distinction between Commercial, Compensated,
and Paid Surrogacy
Arrangements” (2015) 21 NZBLQ 178 at 182.
- United
Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), art 35; and Optional
Protocol to the Convention on
the Rights of the Child on the sale of children,
child prostitution and child pornography 2171 UNTS 227 (opened for signature 25
May 2000, entered into force 1 January 2002).
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at
[76]–[79]; Maud de Boer-Buquicchio Report of the Special Rapporteur on
the sale and sexual exploitation of children, including prostitution, child
pornography and other
child sexual abuse material UN Doc A/HRC/37/60 (15
January 2018) at [41]; and International Social Service Principles for the
protection of the rights of the child born through surrogacy (Verona principles)
(Geneva, 2021) at [14.1]–[14.13].
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [14.8].
- Betty-Ann
Kelly “Compensation for Surrogates: Doing Public Policy” in Annick
Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New
Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 25 at
48. In Margaret Brazier, Alastair Campbell and Susan
Golombok Surrogacy: Review for Health Ministers of Current Arrangements for
Payments and Regulation – Report of the Review Team (Cm 4068, United
Kingdom, October 1998), it was noted at [4.25] that “[p]ayment increases
the risk of exploitation if it constitutes
an inducement to participate in an
activity whose degree of risk the surrogate cannot, in the nature of things,
fully understand
or predict”. See also Claire Achmad
“Children’s Rights in International Commercial Surrogacy: Exploring
the challenges
from a child rights, public international human rights law
perspective” (PhD thesis, Leiden University, 2018) at
65–70.
71 Law Commission
of England and Wales and Scottish Law Commission Building families through
surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at [14.61].
(d) Permitting payment of a fee would be inconsistent with
regulatory approaches to other donative practices in Aotearoa New Zealand.
Payment of a fee is not permitted for blood donation, organ donation or ovum,
sperm or embryo donation.72
(e) Permitting payment of a fee would also be inconsistent with approaches to
surrogacy in comparable jurisdictions. Fees cannot be
paid to surrogates in
Australia, England, Wales, Scotland or Canada. Only a few jurisdictions
characterised as offering commercial
surrogacy permit fees, such as some states
in the United States, Ukraine, Georgia and Russia.
(f) Permitting payment of a fee may increase the cost of surrogacy and
therefore reduce accessibility for intended parents.73 This could be mitigated to an
extent if fees were set by a regulatory body rather than freely negotiated
between the parties. However,
setting the level of the fee would be a difficult
task. If it is set too high, it would make surrogacy inaccessible for many New
Zealanders. If it is set too low, it may lead to an increase in surrogates from
socio-economically marginalised backgrounds who may
be more likely to accept a
lower fee. These women may face a greater risk of exploitation.
(g) Increasing the cost of domestic surrogacy could result in more intended
parents pursuing international surrogacy. As we explain
in Chapters 3 and 9,
international surrogacy presents complex issues, potentially placing the parties
and any resulting child at
greater risk. For these reasons, a guiding principle
of our review is that intended parents should be supported to enter surrogacy
arrangements in Aotearoa New Zealand rather than offshore.
(h) Payment of a fee may not be consistent with public attitudes. As noted
above, the Surrogacy Survey found that, of respondents
who thought domestic
surrogacy should be legal, only 31 per cent supported the surrogate being paid
for their time and service.74
- 6.67 Our
preliminary view is that the arguments against outweigh the benefits of
providing for a fee.
- 6.68 We are not
convinced that the payment of a fee should be permitted on the basis that it is
already happening overseas. This would
effectively see regulation based on the
“lowest common denominator” 75 by basing domestic policy on
what intended parents can lawfully do elsewhere. As one Australian commentator
observes:76
72 See Human Tissue Act
2008, s 56; and Human Assisted Reproductive Technology Act 2004, s 13.
- Betty-Ann
Kelly “Compensation for Surrogates: Doing Public Policy” in Annick
Masselot and Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New
Zealand: Ethics, Law, Policy and Rights (Centre for Commercial &
Corporate Law, Te Whare Wānanga o Waitaha | University of Canterbury,
Christchurch, 2019) 25 at
52; and Debra Wilson Rethinking Surrogacy Laws: Te
Kohuki Ture Kopu Whangai – Overview of Report (Te Whare Wānanga
o Waitaha | University of Canterbury, May 2020) at 36–37.
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Public Perceptions Survey (Te Whare Wānanga o
Waitaha | University of Canterbury, May 2020) vol 3 at 64.
- Claire
Fenton-Glynn and Jens M Scherpe “Surrogacy in a Globalised World:
Comparative Analysis and Thoughts on Regulation”
in Jens M Scherpe, Claire
Fenton-Glynn and Terry Kaan (eds) Eastern and Western Perspectives on
Surrogacy (Intersentia, Cambridge (UK), 2019) 515 at 575.
- Sonia
Allan “The Surrogate in Commercial Surrogacy: Legal and Ethical
Considerations” in Paula Gerber and Katie O’Byrne
(eds)
Surrogacy, Law and Human Rights (Ashgate, United Kingdom, 2015) 113 at
143.
Domestic laws should not be changed to permit commercial
surrogacy in those jurisdictions that currently prohibit the practice solely
based upon dilemmas created by people who have engaged in global surrogacy
arrangements (sometimes against the law of their own
jurisdiction). Such cases
should be dealt with by the courts, on a case-by-case basis; or the legislature
should speak as to what
should occur.
- 6.69 While
introducing the payment of fees could reduce barriers for women considering
becoming surrogates in Aotearoa New Zealand
and reduce the need for intended
parents to go overseas, we have serious concerns about how this would affect
access to surrogacy
by intended parents who may not be able to afford a fee on
top of paying the surrogate’s costs (under Option 1) and the other
costs
associated with surrogacy outlined in Chapter 5.
- 6.70 Overall, we
think that introducing payments would constitute a radical shift in Aotearoa New
Zealand public policy and is not
justified by the arguments identified above.
Concerns regarding access can be addressed in other ways by ensuring a surrogate
is
not financially disadvantaged (under Options 1 and 2), by improving
safeguards (discussed in Chapters 5 and 7) and by increasing
access to
information about becoming a surrogate (discussed in Chapter 10).
Should the payment of a fee be a criminal offence?
- 6.71 The
HART Act criminalises intended parents and surrogates for exchanging valuable
consideration. In practice, as we have already
noted, we are unaware of anyone
being prosecuted under this offence.
- 6.72 Even if
paying a fee to surrogates remains unlawful, there are good reasons for focusing
the criminal offence on intermediaries
who facilitate commercial surrogacy
rather than criminalising intended parents and surrogates who act contrary to
the law:
(a) The UN Special Rapporteur recommends that any criminal
or civil penalties for illegal surrogacy arrangements should focus primarily
upon intermediaries, 77
observing that:78
... the real threat of exploitation and commodification of children, and
potentially of surrogates, is often related to the role of
intermediaries. In
general, this is due to the for- profit motives of private intermediaries, who
have, as a guiding motive, the
successful completion of the surrogacy agreement
with little to no regard for the rights of those involved.
(b) The UN Special Rapporteur recommends that commercial surrogacy should not
lead to the criminalisation of surrogates, noting that
this can have “dire
consequences” for their rights.79 It is more appropriate that
safeguards focus on free and informed
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/HRC/37/60 (15 January 2018) at
[77(k)].
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at [78].
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at [77] and
[79].
consent by surrogates and the role of intermediaries.80 Reflecting these concerns,
it is not a criminal offence for the surrogate to receive consideration in the
United Kingdom or in Canada.81
(c) Equally, the UN
Special Rapporteur observes that criminalising the intended parents will not
normally be in the child’s
best interests.82 This is recognised in the
United Kingdom, where legislation “is careful to avoid criminalising the
conduct of intending parents”83 due to the wish to avoid
children being born with the “taint of criminality”.84
- 6.73 In Aotearoa
New Zealand, lawyers appear divided on this question. A survey of family lawyers
revealed that 52 per cent of respondents
thought criminalisation should be
removed, while 48 per cent favoured retention.85 Associate Professor Debra
Wilson has suggested that, while criminal sanctions might have been a reasonable
position to take in the
1980s (when gestational surrogacy was an emerging
practice), it is no longer clear that this is the case. 86 Societal attitudes towards
surrogacy are changing, and the increasing level of acceptance of the practice
means surrogacy is no longer
a “societally- recognisable moral
wrong”.87 Potential
harm caused by surrogacy also appears to be a risk rather than inherent in
every case, and this may mean the matter is
not serious enough to warrant public
condemnation.88
- 6.74 We are
interested in hearing your views on whether you think the law should continue to
make it a criminal offence to facilitate
surrogacy arrangements on a commercial
basis but focus only on the role of intermediaries rather than on intended
parents and surrogates
who act contrary to the law.
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at
[79].
81 Surrogacy
Arrangements Act 1985 (UK), s 2(2); and Assisted Human Reproduction Act SC 2004
c 2, ss 6(1) and 60.
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including prostitution, child pornography and other
child sexual abuse material UN Doc A/74/162 (15 July 2019) at
[79].
83 Law Commission of
England and Wales and Scottish Law Commission Building families through
surrogacy: A new law
– A joint consultation paper (CP244/DP167, 2019) at [14.40]. See
also [15.80], where the Commissions endorsed this approach, observing that
criminalisation is
an inappropriate enforcement mechanism in the case of
surrogacy arrangements.
- Report
of the Committee of Inquiry into Human Fertilisation and Embryology (Warnock
Report) (Cmnd 9134, 1984) at [8.19]. See also Margaret Brazier, Alastair
Campbell and Susan Golombok Surrogacy: Review for Health Ministers of Current
Arrangements for Payments and Regulation – Report of the Review Team
(Cmnd 4068, October 1998) at [4.38].
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Lawyers Survey (Te Whare Wānanga o Waitaha |
University of Canterbury, May 2020) vol 1 at 120.
- Debra
Wilson Rethinking Surrogacy Laws: Te Kohuki Ture Kopu Whangai –
Overview of Report (Te Whare Wānanga o Waitaha | University of
Canterbury, May 2020) at 165.
- Debra
Wilson Rethinking Surrogacy Laws: Te Kohuki Ture Kopu Whangai –
Overview of Report (Te Whare Wānanga o Waitaha | University of
Canterbury, May 2020) at 165.
- Debra
Wilson Rethinking Surrogacy Laws: Te Kohuki Ture Kopu Whangai –
Overview of Report (Te Whare Wānanga o Waitaha | University of
Canterbury, May 2020) at 167.
QUESTIONS
|
|
Q14
|
Do you agree with the issues we have identified with financial support
for
|
surrogates? Are there other issues we should consider?
|
Q15
|
Do you agree with Option 1 to clarify and expand the list of permitted
costs that
|
can be paid in a surrogacy arrangement? If so, do you agree with our
proposed list of permitted costs? Are there other costs you would
include in
this list?
|
Q16
|
Do you agree with Option 2 to clarify the law with respect to
surrogates’
|
entitlements to post-birth recovery leave and payments? If so, what should
be the length of time surrogates are entitled to receive
leave and
payments?
|
Q17
|
Do you think intended parents should be permitted to pay surrogates a fee
for their
|
participation in a surrogacy arrangement (in addition to paying a
surrogate’s reasonable costs under Option 1)?
|
CHAPTER 7
Legal
parenthood
IN THIS CHAPTER, WE CONSIDER:
- the legal
parenthood of surrogate-born children; and
- issues with the
current law and options for reform.
INTRODUCTION
- 7.1 There
are no specific parenthood laws to deal with the unique relationships that exist
in surrogacy arrangements. Intended parents
must instead rely on the adoption
process to transfer legal parenthood from the surrogate (and her partner) to the
intended parents.
We think that the current law fails to reflect the reality of
surrogacy arrangements and that the adoption process is inappropriate
for
establishing the intended parents’ legal parenthood.
- 7.2 The adoption
process itself is widely acknowledged as being out of date and in need of
reform.1 The Ministry of
Justice is currently reviewing adoption law and is committed to ensuring the law
aligns with Aotearoa New Zealand’s
values and protects children’s
rights.2 The prospect of
modernised adoption laws does not, however, change our view that adoption and
surrogacy are two different and legitimate
forms of family building that require
different policy responses and legal frameworks.
THE CURRENT LAW
- 7.3 The
legal parents of a surrogate-born child are determined in accordance with the
long- existing common law rule that the legal
mother is the woman who has given
birth to the
- See,
for example, Te Aka Matua o te Ture | Law Commission Adoption and Its
Alternatives: A Different Approach and a New Framework (NZLC R65, 2000);
Re C (Adoption) [2008] NZFLR 141 (FC) at [71]; and Bill Atkin
“Adoption law: The courts outflanking Parliament” (2012) 7 NZFLJ
119.
2 Tāhū o te
Ture | Ministry of Justice Adoption in Aotearoa New Zealand: Discussion
Document (June 2021).
child3 and the specific rules
that were developed for donor gamete conception set out in the Status of
Children Act 1969.4
(a) The surrogate is the legal mother of the surrogate-born
child because she gave birth to the child. This rule applies regardless
of
whether the surrogacy is traditional (using the surrogate’s ovum)5 or gestational (using the ovum
of the intended mother or a donor).6
(b) The surrogate’s partner (if she has one) is also a legal parent of
the surrogate-born child 7
unless there is evidence that establishes that they did not consent to the
procedure.8
(c) The intended parents are not legal parents of the surrogate-born child
even if the child is the genetic child of one or both intended
parents.9
- 7.5 These
provisions apply regardless of whether the procedure is carried out in Aotearoa
New Zealand or the child is born overseas.10 We discuss the implications
of this rule for international surrogacy arrangements in Chapter
9.
Role of
the Adoption Act 1955 in surrogacy arrangements
- 7.6 The Adoption
Act 1955 is the only way to alter legal parenthood in domestic surrogacy
arrangements. An adoption order has the
effect of transferring legal parenthood
from the surrogate (and any partner) to the intended parents.11
- 7.7 The Family
Court has exclusive jurisdiction to hear and determine applications under the
Adoption Act.12 It can make
an adoption order if satisfied that the applicant(s) are “fit
and
- This
is evidenced in the Latin maxims mater est quam gestation demonstrate (by
gestation, the mother is demonstrated) and mater simper certa est
(motherhood is certain): Te Aka Matua o te Ture | Law Commission New
Issues in Legal Parenthood (NZLC R88, 2005) at
[3.3].
4 These rules were
introduced by the Status of Children Amendment Act 1987.
- Traditional
surrogacy is not explicitly addressed in the Status of Children Act 1969 because
it does not involve the use of an ovum
produced by another woman. The common law
rules discussed at n 3 would therefore
apply.
6 Status of Children
Act 1969, s 17.
- Status
of Children Act 1969, s 18. The term “partner” means a spouse, civil
union partner or de facto partner: s 14(1)
(definition of
“partner”).
- Status
of Children Act 1969, s 27 provides that the partner’s consent to the
procedure is presumed in the absence of evidence
to the contrary and may be
implicitly established through the partner’s actions.
- Status
of Children Act 1969, ss 19–22 have the effect of treating intended
parents who provide their ovum or sperm for an assisted
human reproduction
procedure involving a surrogate as donors. An intended parent whose ovum or
sperm are used in conception will
only be a legal parent if they become the
surrogate’s partner after conception: ss 20(2) and
22(2).
10 Status of Children
Act 1969, s 16.
11 Adoption Act 1955, s 16.
12 Family Court Act 1980, s
11(1)(b).
proper” to care for and raise the child and that the welfare and interests
of the child will be promoted by the adoption.13
The social worker’s report
- 7.8 Before
making an adoption order, the Family Court must obtain a report from an Oranga
Tamariki social worker.14 In
order to prepare this report, the social worker will undertake an adoptive
applicant assessment, which includes documentary checks
(police background
checks, medical record checks, character references and child protection checks)
and assessment interviews with
the adoptive parents. The documentary checks do
not need to be repeated if they were undertaken as part of the Ethics Committee
on
Assisted Reproductive Technology (ECART) process (described in Chapter 5),
provided the in-principle approval given by Oranga Tamariki
under that process
has not expired.
- 7.9 In a
surrogacy arrangement, the adoptive applicant assessment can be conducted once
a viable pregnancy is established (around
the 12-week mark) if the intended
parents notify Oranga Tamariki of the pregnancy. When the child is born, the
intended parents apply
for an adoption and the Family Court requests a social
worker’s report. The social worker will visit the intended parents’
home so that they can observe the child in the intended parents’ care and
will then prepare the report for the Court, relying
on the information from the
adoptive applicant assessment and the subsequent home visit.
Interim and final adoption orders
- 7.10 The
Adoption Act provides for a two-stage adoption process, which envisages the
Family Court making an interim adoption order
in the first instance, followed by
a final adoption order six months later. If there are “special
circumstances”, the
Court can make a final adoption order in the first
instance rather than an interim order.15
- 7.11 In
practice, the presence of a surrogacy arrangement is generally considered a
special circumstance warranting the making of
a final adoption order in the
first instance. 16 However, if the
social worker has any concerns about the surrogacy arrangement, they may
recommend in their report that an interim
adoption order is made in the first
instance. This gives the social worker the mandate to visit the intended parents
and child during
- Adoption
Act 1955, ss 11(a)–(b). The Adoption Act also requires that conditions
imposed with respect to religious denomination
are complied with: s 11(c).
However, in practice, this requirement is rarely remarked upon in adoptions
involving a surrogacy arrangement.
- Adoption
Act 1955, s 10. The Adoption Act also provides for a member of the Māori
community to be nominated, after consultation
with the Māori community, by
the Oranga Tamariki chief executive to provide a section 10 report in cases
where a Māori
applicant or applicants apply for an adoption order in
respect of a Māori child: s 2 (definition of “social worker”).
In cases where a Māori report writer is appointed, they will usually work
in collobaration with an Oranga Tamariki social worker
to prepare the
report.
15 Adoption Act 1955,
s 5(b).
- Margaret
Casey “Creating families and establishing parentage when there is a
disconnect between Assisted Reproductive Technologies
and the Legal System: A
New Zealand perspective of a global problem” (2017) 9 NZFLJ 51 at 53.
See, for example, Re Weber (adoption) [2020] NZFC 7259 at [15]; Dumont
v Dumont [2019] NZFC 2529, [2019] NZFLR 202 at [12]; Re Witt [2019]
NZFC 2482, [2019] NZFLR 91 at [19]; Re Pierney [2015] NZFC 9404,
[2016] NZFLR 53 at [17]; and Re H [2015] NZFC 1541 at
[8].
that interim period to continue to monitor the arrangement.17 Once a final adoption order
is granted, the social worker ceases to have any monitoring role.
The requirements for consent
- 7.12 An
adoption order will generally only be made if the surrogate (and any partner)
consents to the adoption.18
Consent cannot be given by the surrogate until the child is at least 10
days old,19 and it is
unlawful for intended parents to care for the child in their home before an
interim adoption order is in force unless they
have received prior approval from
a social worker.20
- 7.13 An adoption
can proceed without the consent of the surrogate (and any partner) only in
very limited circumstances.21
We are aware of two cases where the need for consent was dispensed with in
a surrogacy arrangement. In one case, the surrogate’s
partner wanted
no part in the surrogacy arrangement and refused to provide his consent.22 In another case, the
surrogacy arrangement was entered into in Ukraine and the surrogate could
not be located to provide consent,
although she had earlier signed the
surrogacy agreement and a declaration after the child’s birth naming the
intended parents
as the child’s parents.23 In both cases, the Family
Court had to be satisfied that the parent had “failed to exercise the
normal duty and care of parenthood”
in order to proceed without their
consent.24
Alternatives
to legal parenthood
- 7.14 If the
intended parents do not want to formally adopt the surrogate-born child, they
could instead:
(a) care for the child informally, without any
legally recognised parental rights or responsibilities;
(b) proceed with a whāngai arrangement and become mātua
whāngai (whāngai parents) to the child, caring for the
child without
any legally recognised parental rights or responsibilities (as we explore in
Chapter 4, whāngai arrangements
are not recognised in law);
17 Adoption Act 1955, s
15(2)(b).
18 Adoption Act 1955, s 7.
19 Adoption Act 1955, s 7(7).
20 Adoption Act 1955, s 6(1).
21 Adoption Act 1955, s 8(1).
22 Re an application by ALH and SFDH
to adopt a child FC North Shore FAM-2011-44-371.
23 Re Witt [2019] NZFC 2482,
[2019] NZFLR 91.
- Re
an application by ALH and SFDH to adopt a child FC North Shore
FAM-2011-44-371 at [23]; and Re Witt [2019] NZFC 2482, [2019] NZFLR 91 at
[18].
(c) apply for guardianship of the child under the Care of
Children Act 2004, which would give them “all duties, powers, rights,
and
responsibilities that a parent of the child has in relation to the upbringing
of the child”;25
(d) apply for a parenting order under the Care of Children Act, which can
determine when and how they will have the role of providing
day-to-day care
for, or contact with, the child.26
- 7.15 These
alternatives have limitations in relation to the rights and entitlements that
flow from the legal parent-child relationship,
including rights and entitlements
to a parent’s estate under succession law, 27 child support obligations28 and citizenship. 29 In addition, if the intended
parents are caring for their child informally, strictly speaking according to
law, they cannot consent
to medical treatment for the child or apply for a
passport on behalf of the child.30
- 7.16 Additionally,
in none of these situations would the surrogate and her partner lose their
parental status. As guardianship automatically
flows from legal parenthood,
they would also retain duties, powers, rights and responsibilities as the
child’s guardians.31
ISSUES
- 7.17 There
are two broad problems with the current law:
(a) First, the legal
parenthood laws fail to reflect the reality of surrogacy arrangements.
(b) Second, the adoption process is inappropriate for establishing the
intended parents’ legal parenthood, even if it is modernised
as a result
of the Government’s current review.
- Care
of Children Act 2004, s 15. We are aware of two cases in which guardianship was
sought instead of adoption: M v C [2014] NZFC 3587, [2014] NZFLR
922; and CGL v SJP [2012] NZFC 9828. In both cases, the intended parents
sought guardianship orders as an interim measure, intending to move to
Australia.
- Care
of Children Act 2004, s 48. A parenting order was sought in addition to a
guardianship order in CGL v SJP [2012] NZFC 9828.
- Children
automatically benefit from a parent’s estate if a parent dies without a
will under s 77 of the Administration Act 1969,
and a child can make a claim for
provision from the estate where a parent has died and the terms of their
will do not make adequate
provision for their maintenance and support under s
4 of the Family Protection Act 1955. A review of aspects of the law
governing
succession is currently being undertaken by Te Aka Matua o Te Ture |
Law Commission: Review of Succession Law: Rights to a person’s
property on death | He arotake i te āheinga ki ngā rawa
a te tangata ka mate ana (NZLC IP46, 2021).
- Obligations
to provide financial support flow from parenthood, not guardianship status:
Child Support Act 1991, s 6. In one case involving
a lesbian couple who had
separated, the court held that a woman who had been appointed as guardian to her
former partner’s
three children (conceived using artificial insemination
during their 14-year relationship) had assumed the role of step-parent under
s
99 of the Child Support Act 1991: T v T [1998] NZFLR 776 (FC); and A v
R [1999] NZFLR 249 (HC).
- A
person acquires New Zealand citizenship by birth if they are born in Aotearoa
New Zealand and one of their parents is a New Zealand
citizen or entitled to be
in Aotearoa New Zealand indefinitely: Citizenship Act 1977, s 6. A person can
also acquire citizenship
by descent if they are not born in Aotearoa New Zealand
but their mother or father is a New Zealand citizen: Citizenship Act 1977,
s
7.
30 Care of Children Act
2004, s 36(3); and Passports Act 1992, s 4(3)(a).
31 Care of Children Act 2004, s 17.
- 7.18 The need
for a new approach to legal parenthood in surrogacy arrangements is widely
acknowledged. In 2005, the Commission published
its report New Issues in
Legal Parenthood, which identified “an urgent need to create a
legislative framework for the allocation of parenthood in surrogacy
arrangements”.32
- 7.19 The
Government agreed in principle with the Commission’s recommendations, 33 accepting that the adoption process
“is not well-suited for implementing surrogacy arrangements for many
reasons”.34
- 7.20 While the
Commission’s 2005 recommendations were not progressed, dissatisfaction
with the current law remains. 35
Family Court judges considering adoption applications have repeatedly
pointed to the unsuitability of adoption laws, passed over 60
years ago, to
dealing with the kinds of issues arising in surrogacy arrangements.36 Three Members’ Bills
have sought reform,37 and in
2019, a petition signed by 32,239 people was presented to Parliament calling for
the simplification of adoption and surrogacy
laws (the 2019 Petition).38
Current
legal parenthood laws fail to reflect the reality of surrogacy
arrangements
- 7.21 Current
legal parenthood laws do not reflect the planned nature of surrogacy
arrangements. The intended parents and surrogate
enter a surrogacy arrangement
with the joint intention that the surrogate will become pregnant and carry and
deliver the child for
the intended parents to raise. The surrogate has no
intention to raise the child herself. The surrogate’s partner (if she has
one) normally makes no direct contribution to the creation of the child and has
no intention to perform any parental role following
the child’s
birth.
- 7.22 One or both
intended parents are usually the child’s genetic parents. In these
circumstances, the law is said to create
a “legal fiction” by
failing to recognise a genetic parent who intends to raise the child from birth
as the child’s
legal parent. 39 Using
32 Te Aka Matua o te Ture
| Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
[7.57].
33 Government Response to Law
Commission Report on New Issues in Legal Parenthood (March 2006) at [11].
34 Government Response to Law
Commission Report on New Issues in Legal Parenthood (March 2006) at [29].
- See,
for example, Ruth Walker and Liezl van Zyl “Surrogacy and the law: three
perspectives (2020) 10 NZFLJ 9 at 13– 14;
Martha Ceballos
“Parenthood in surrogacy agreements: a new model to complete the
puzzle” (2019) 9 NZFLJ 123; Henry Kha and Kelly Rankin “Mater semper
certa est? Reconceiving surrogacy law in New Zealand” (2019) 9 NZFLJ 172
at 176; Debra Wilson “Surrogacy in New Zealand” [2016] NZLJ 401 at
409; and Sarah Alawi “Highlighting the need to revisit surrogacy laws in
New Zealand” [2015] NZLJ 352 at 353–354.
- Re
KJB and LRB [2010] NZFLR 97 (FC) at [39]. See also Re C (Adoption]
[2008] NZFLR 141 (FC) at [35] and [61]– [65]; Re A [2015] NZFC
3348 at [2]–[3]; Re Witt [2019] NZFC 2482, [2019] NZFLR 91 at [16];
Re X [2019] NZFC 7753 at [3]; and Re Weber (adoption) [2020] NZFC
7259 at [4].
- Improving
Arrangements for Surrogacy Bill 2021 (undrawn Member’s Bill, Tāmati
Coffey MP); Care of Children (Adoption and
Surrogacy Law Reform) Amendment Bill
2012 (undrawn Member’s Bill, Kevin Hague MP); and Jacinda Ardern
MP’s Bill, Care
of Children Law Reform Bill 2012 (62-1).
- Petition
of Christian John Newman “Update the Adoption Act 1955 to simplify and
speed up the process for adoption” (2017/409,
presented to Parliament 3
October 2019).
39 This point
is often highlighted in decisions granting adoption orders: Re A [2015]
NZFC 3348 at [2]; Re C (Adoption]
[2008] NZFLR 141 (FC) at [31]; and Re X [2019] NZFC 7753 at [3].
adoption laws to transfer legal parenthood to a child’s genetic parent
further perpetuates this legal fiction.40
- 7.23 We think
that the law’s failure to reflect the reality of surrogacy arrangements is
problematic for several reasons:
(a) The law fails to promote the
child’s best interests. The current law creates a split between the
intended parents’
social (and often genetic) parenthood and the
surrogate’s legal parenthood until such time as the adoption is finalised.
We
do not think it is in the child’s best interests to have no legal
relationship with the intended parents during this time.
It leaves the intended
parents without any legal responsibilities to the child. Likewise, it may not
be in the child’s best
interests that their only legal relationship is
with the surrogate and her partner when they have no intention to raise the
child
themselves. The legal fiction created by the legal parenthood laws may
also have a negative impact on the child’s rights
to identity and
to know their genetic and gestational origins. We discuss this issue further in
Chapter 8.
(b) The law does not respect the intentions of the surrogate and intended
parents. Their joint intention is that the child should,
from birth, be raised
by the intended parents as their child. The law’s failure to accommodate
the parties’ intentions
fails to respect the autonomy of the parties in
their private lives, which we recognise in Chapter 3 as an important guiding
principle
for surrogacy law reform. This is also out of step with the weight
given to the parties’ intentions in donor gamete conception.
Amendments to
the Status of Children Act clarified that the recipients of donated gametes are
the legal parents of any donor-conceived
child rather than the donor(s). In
doing so, the law gives priority to the intentions of parties who have created
children using
donor gametes rather than genetic parenthood. In contrast, the
law does not produce the legal and social result intended in the case
of
surrogacy.41
(c) The law is confusing and capable of being misapplied. The rules in the
Status of Children Act were designed to clarify legal parenthood
in situations
of donor gamete conception rather than in surrogacy arrangements. The fact that
the surrogate’s partner is a
legal parent is particularly confusing,42 and there are several
examples where an intended father rather than the surrogate’s partner is
recorded on the child’s
birth certificate as the child’s legal
father even though that is inconsistent with the law.43
(d) There is a disconnection between the regulation of surrogacy and the
recognition of legal parenthood. In Chapter 5, we outline
the robust regulatory
framework that requires prior approval of gestational surrogacy arrangements by
ECART. Given the
- Te
Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005) at xix–xx; and Martha Ceballos “Parenthood in surrogacy
agreements: a new model to complete the puzzle”
(2019) 9 NZFLJ 123 at
129.
- Margaret
Casey “Creating families and establishing parentage when there is a
disconnect between Assisted Reproductive Technologies
and the Legal System: A
New Zealand perspective of a global problem” (2017) 9 NZFLJ 51 at
51.
42 As acknowledged in
Re an application by ALH and SFDH to adopt a child FC North Shore
FAM-2011-44-371 at [18].
43 See, for example, Re an
application by ALH and SFDH to adopt a child FC North Shore FAM-2011-44-371
at [10];
Re B [2013] NZFC 7685 at [5]; and M v C [2014] NZFC 3587,
[2014] NZFLR 922 at [39].
existence of this regulatory framework, it is inconsistent that there is no
corresponding downstream recognition of surrogacy as
a process that creates a
legal parent-child relationship between the intended parents and the
surrogate-born child.44
(e) The law may be
inconsistent with public attitudes. The Surrogacy Survey asked respondents an
open question about who should be
the legal parents in a surrogacy arrangement.
The most common answer given was the “intended parents” (52 per
cent),
while others gave a range of responses such as the genetic parents
of the child (11 per cent) or some form of joint parenthood
(five per
cent).45 Only five per cent
of respondents who answered this question thought that the surrogate should
be the child’s legal parent.46 Public attitudes are also
reflected in the 2019 Petition, which called for improvements to adoption and
surrogacy laws and specifically
recorded that “[w]e believe the [ECART]
approval process should remove any need for adoption and the intended
parents
should be listed as parents from the day the child is born”.47
Adoption process is
inappropriate in surrogacy arrangements
- 7.24 Unlike
Australia, England, Wales, Scotland, Canada and other jurisdictions that have
specific legal frameworks for recognising
legal parenthood in surrogacy
arrangements, Aotearoa New Zealand continues to rely on adoption law that has
not substantially changed
in 66 years.
- 7.25 The
Government acknowledged in its response to the Commission’s 2005 report
that:48
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.
- 7.26 Adoption
and surrogacy are two different and legitimate forms of family building, and
they require different policy responses
and legal frameworks. We have heard from
many intended parents who strongly believe that they should not have to adopt, a
sentiment
echoed in Re A, where the Court said:49
- Alison
Douglass and Michael Legge “Regulating Surrogacy in New Zealand: Evolving
Policy and Cautious Liberalism under the HART
Act” in Annick Masselot and
Rhonda Powell (eds) Perspectives on Commercial Surrogacy in New Zealand:
Ethics, Law, Policy and Rights (Centre for Commercial & Corporate Law,
Te Whare Wānanga o Waitaha | University of Canterbury, Christchurch, 2019)
1 at 2;
and Martha Ceballos “Parenthood in surrogacy agreements: a new
model to complete the puzzle” (2019) 9 NZFLJ 123 at 129.
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Public Perceptions Survey (Te Whare Wānanga o
Waitaha | University of Canterbury, May 2020) vol 3 at 151–154.
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Public Perceptions Survey (Te Whare Wānanga o
Waitaha | University of Canterbury, May 2020) vol 3 at 153.
- Petition
of Christian John Newman “Update the Adoption Act 1955 to simplify and
speed up the process for adoption” (2017/409,
presented to Parliament 3
October 2019).
48 Government
Response to Law Commission Report on New Issues in Legal Parenthood (March 2006)
at [29].
49 Re A [2015] NZFC 3348 at
[3].
There is a desperate need for an overhaul of the legislation to
recognise the modern world in which we live. For it seems wrong that
[the
intended mother] has to apply to the Court to adopt a child who is biologically
her own.
- 7.27 The
difference between adoption and surrogacy also results in practical problems
when applying the adoption process to surrogacy
arrangements as we explain
below.
The adoption process leaves parties with no way to resolve
disputes
- 7.28 Surrogacy
arrangements are legal but unenforceable in Aotearoa New Zealand, 50 consistent with the approach taken in
comparable jurisdictions. 51
The consent-based nature of the adoption process therefore leaves parties
with no way to resolve disputes over legal parenthood. This
introduces an
element of uncertainty as to the outcome in any surrogacy arrangement and leaves
the parties in a vulnerable position.
- 7.29 If the
surrogate refuses to agree to the adoption and instead wishes to raise the
child herself, the intended parents cannot
be recognised as the
child’s legal parents. To have a role in the child’s care, they
would need to seek a parenting
order or apply to be appointed as a guardian of
the child under the Care of Children Act. As explained above, this would not
give intended parents the same rights and responsibilities for the child that
come with legal parenthood, nor would it extinguish
the surrogate’s (and
her partner’s) parental status. In the context of a surrogacy arrangement,
these alternatives do
not provide the child with the same degree of security
and therefore may not be in the child’s best interests.52
- 7.30 The
consent-based nature of adoption also leaves the surrogate and her partner
vulnerable. If the intended parents do not
seek an adoption order, the surrogate
(and any partner) will remain the child’s legal parents and will be
legally and financially
responsible for that child.
- 7.31 In
practice, it is rare for surrogacy arrangements to break down to the point where
legal parenthood and parental responsibility
are contested. We are only aware of
one such case in Aotearoa New Zealand.53 In that case, the intended
parents entered a traditional surrogacy arrangement without the involvement of a
fertility clinic, and
the surrogate reportedly changed her mind during the
pregnancy. The result was a shared-care arrangement in relation to the resulting
child between the surrogate and intended parents.
- 7.32 This
problem is also illustrated in the English case of Re AB.54 In that case, the surrogate
and her husband had handed over the children to the intended parents but then
refused to consent to the
making of a parental order, which was necessary to
transfer legal parenthood from the surrogate and her partner to the intended
parents.
The Court
50 Human Assisted
Reproductive Technology Act 2004, s 14(1).
- Surrogacy
arrangements are unenforceable in Australia, the United Kingdom and Canada,
although some jurisdictions make an exception
to ensure that intended parents
pay a surrogate’s costs and expenses relating to the surrogacy
arrangement, as we explain in
Chapter
6.
52 Re G DC
Invercargill Adopt 6/92, 3 February 1993 at 8.
- Katie
Harris “Surrogacy Horror: Kiwi parents are having to share custody with
surrogate” NZ Herald (online ed, New Zealand, 24 January
2021).
54 Re AB (Surrogacy:
Consent) [2016] EWHC 2643 (Fam), [2017] 2 FLR 217.
observed that the decision of the surrogate and her husband regarding consent
seemed “due to their own feeling of injustice,
rather than what is in the
children’s best interests”.55 Nonetheless, their refusal to
consent meant that:56
[T]he application for a
parental order comes to a juddering halt, to the very great distress of the
applicants. The result is that
these children are left in a legal limbo, where,
contrary to what was agreed by the parties at the time of the arrangement, the
respondents
will remain their legal parents even though they are not
biologically related to them and they expressly wish to play no part in
the
children’s lives.
- 7.33 In that
case, the Court was limited to making an order giving the intended parents
parental responsibility for the children,
but they remained the legal children
of the surrogate and her husband. This has been criticised as “a wholly
unsatisfactory
situation, with the law not reflecting the reality of the
situation”.57
- 7.34 While
disputes over legal parenthood are rare, their potential and the lack of any
process to resolve disputes can “create
an atmosphere of fear and
mistrust” 58 in
surrogacy arrangements. 59
This may deter some intended parents from pursuing a domestic surrogacy
arrangement in favour of an international surrogacy arrangement
in a
jurisdiction where they have clearer legal rights and responsibilities in
relation to the child. It might also deter women from
acting as surrogates in
Aotearoa New Zealand.
- 7.35 These
concerns were evident in our initial consultation. One intended parent told
us that all they could do was hope it would
all work out, but “with
something so serious, you need more than hope”. One surrogate’s
partner we spoke
with told us that their legal responsibility for the child if
the intended parents changed their mind was “one of our biggest
concerns
when we started on this journey” because “we have everything to
lose”. Several intended parents we spoke
with told us that the legal
uncertainty in Aotearoa New Zealand was a factor in them deciding to pursue
surrogacy offshore.
One male couple who pursued surrogacy in the United
States said that it was reassuring knowing their rights and that their
surrogate was protected and could not be taken advantage of.
The adoption process does not provide for all surrogacy
situations
- 7.36 The
effect of adoption is to transfer legal parenthood from one or two individuals
to another individual or individuals. This
transfer cannot occur in respect of
an intended parent who dies before the adoption order is made. This means that
the child’s
birth certificate will not record a deceased intended parent
as their legal parent, which fails to
- Re
AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam), [2017] 2 FLR 217 at [8]. The
Court noted that the catalyst for the breakdown appeared to have been that
the surrogate felt the intended parents had not
shown sufficient concern for her
well-being after she had been told, at her 12-week scan, that the continuation
of the pregnancy
could put her health at risk, at
[19].
56 Re AB (Surrogacy:
Consent) [2016] EWHC 2643 (Fam), [2017] 2 FLR 217 at [9].
- Amel
Alghrani and Danielle Griffiths “The regulation of surrogacy in the United
Kingdom: the case for reform” [2017] 29 Child and Family Law Quarterly 165
at 179.
- Liezl
van Zyl and Ruth Walker “Beyond altruistic and commercial contract
motherhood: The professional model” (2013) 27
Bioethics 373 at 381.
- Research
exploring the experiences of intended parents and surrogates in Aotearoa New
Zealand found that “[t]he fear most commonly
associated with surrogacy is
that the surrogate will decide not to relinquish the baby”: Ruth Walker
and Liezl van Zyl “Fear
and Uncertainty: The Surrogacy Triad’s
Experience of Social Workers’ Role Ambiguity” (7 September 2020)
British
Journal of Social Work bcaa105 (advance article) at
7.
reflect the reality of the surrogacy arrangement and may cause unwarranted
distress to the parties involved, including the child,
in future. It may also
have consequences for the child’s entitlements to the deceased intended
parent’s estate under
succession law.
- 7.37 In
addition, the adoption process is not available if the child is still-born60 or dies before the adoption
order is made. Again, this means that the child’s birth certificate will
not record the intended
parents as the child’s legal parents.
Understandably, this lack of recognition of the intended parents’
relationship
to a child who has died would likely be very distressing.
Safeguards in the adoption process are unsuited to
surrogacy
- 7.38 The
safeguards built in to the adoption process are unsuited to surrogacy in two
respects.
- 7.39 First, as
we explore in Chapter 5, the difference between surrogacy and adoption calls
into question whether the suitability
of intended parents to care for and raise
the child should be assessed in the same way as prospective adoptive
parents.
- 7.40 Second, the
planned nature of surrogacy arrangements calls into question the utility of the
Family Court assessing, after the child is born, the suitability of the
intended parents and whether the adoption is in the best interests of the
child.
- 7.41 Currently,
when the court considers an adoption application, the surrogate and her
partner will have given their consent
to the adoption, indicating their
intention not to be recognised as the child’s parents. The child will
usually be the genetic
child of one or both intended parents and will have been
living with the intended parents for a period of time, consistent with the
parties’ intentions.
- 7.42 In these
circumstances, the child’s best interests will almost always require the
adoption order to be approved. We are
not aware of any cases where an
application for an adoption order has been declined on the basis that the
intended parents are not
“fit and proper” people to adopt or that
the order is not in the child’s best interests.61 In contrast, ECART can, and
does, decline approval for some surrogacy arrangements if it determines that the
relevant requirements
are not met (see Chapter 5).
- 7.43 The
court’s established practice of granting a final adoption order in the
first instance also indicates that the adoption
process is generally
inappropriate for surrogacy. As the court observed in one surrogacy case,
“it would seem somewhat bizarre
to require further monitoring of an
adoption by biological parents”. 62 Even in cases where there is
no
- The
Births, Deaths, Marriages, and Relationships Registration Act 1995 defines a
still-born child as a dead foetus that weighed 400g
or more when it issued from
its mother or is issued from its mother after the 20th week of pregnancy:
Births, Deaths, Marriages,
and Relationships Registration Act 1995, s 2
(definition of “still-born child”). The birth of a still- born child
must
be registered in the same way as any other child: Births, Deaths,
Marriages, and Relationships Registration Act 1995, s 12.
- This
was affirmed in interviews conducted with Family Court judges as part of the
University of Canterbury’s surrogacy research.
All eight judges advised
that “they have always held that the welfare and best interests of the
child are promoted by the adoption”.
Only one judge had dealt with a case
where a concern was raised about whether the applicants were fit and proper
(concerning an instance
of family violence which was reported to police but did
not result in court proceedings). That was addressed in detail by the social
worker’s report: Debra Wilson Understanding
the
Experience and Perceptions of Surrogacy Through Empirical Research: Judges
Survey (Te Whare Wānanga o Waitaha | University of Canterbury, May
2020) vol 2 at 12–13.
62 Re X [2019] NZFC 7753 at
[12].
genetic link between the child and the intended parent(s), special circumstances
would likely exist given the lack of parental alternatives
and that the child
will have been living with the intended parents since birth.63
- 7.44 While the
evidence is that adoption orders will almost always be approved in a surrogacy
arrangement, it is important to acknowledge
that some intended parents remain
concerned that their adoption application will be rejected. This was a common
theme in our initial
consultations and was also reflected in research conducted
in Aotearoa New Zealand by Dr Ruth Walker and Dr Liezl van Zyl, which
found:64
That full assessment and the
Family Court process caused our participants the most stress. They were led to
believe that the application
to adopt could be declined and they incurred legal
costs for what was in effect a fait accompli given the consent of the
surrogate.
- 7.45 The general
unsuitability of a post-birth best interests’ assessment as a safeguard in
surrogacy arrangements is a recognised
problem.65 As we explore in Chapter 5,
prior authorisation of surrogacy arrangements is generally considered more
likely than a post- birth approval
process to effectively identify and address
any concerns in relation to the arrangement and promote the best interests of
children
born by surrogacy.
The adoption process may prevent intended parents from caring
for the surrogate-born child in the first few weeks
- 7.46 In
some surrogacy arrangements, the requirement for a social worker’s prior
approval to the intended parents caring for
the child in the first 10 days may
be problematic. We understand that, in gestational surrogacy arrangements, prior
approval will
typically be granted. However, in traditional surrogacy
arrangements, the social worker may decline to give prior approval on the
basis
that the child is the surrogate’s genetic child.66 Because these decisions are
at the social worker’s discretion, there is scope for variation in
approach between social workers.
- 7.47 In cases
where prior approval is not given, this may cause the parties distress and
concern that their adoption application might
not be approved and may make it
difficult for some intended parents to care for the child at a time that is very
important for parent-newborn
bonding and attachment. It may also place the
surrogate in the difficult position of having to care for the child against her
intentions,
potentially making it harder to hand over care to the intended
parents when that becomes possible.
63 This was the case in
Re Clifford [2016] NZFC 1666.
64 Ruth Walker and Liezl van Zyl
“Surrogacy and the law: three perspectives (2020) 10 NZFLJ 9 at 14.
- Claire
Fenton-Glynn and Jens M Scherpe “Surrogacy in a Globalised World:
Comparative Analysis and Thoughts on Regulation”
in Jens M Scherpe, Claire
Fenton-Glynn and Terry Kaan (eds) Eastern and Western Perspectives on
Surrogacy (Intersentia, Cambridge (UK), 2019) 515 at 554 and 569–570;
and Law Commission of England and Wales and Scottish Law Commission
Building
families through surrogacy: a new law – A joint consultation paper
(CP244/DP167, 2019) at [5.106]–[5.109].
- In
Re Williamson [2017] NZFC 7371, [2018] NZFLR 513, a case involving a
traditional surrogacy arrangement, the Court observed that the intended parents
had cared for the child since
birth but that “[s]ocial work placement
approval was unable to be issued as Mr and Mrs [Williamson] cared for [the
child] prior
to Ms [Jones’] legal consent being received”: at [3].
Nonetheless, the social worker approved the adoption: at
[9].
The adoption process is lengthy, costly and an administrative
burden
- 7.48 People
we have spoken with during our initial consultation consistently pointed to
the cost, delay and administrative burden
involved in the adoption process.
The expectation is that adoption applications should be concluded within 15
weeks from the
date of filing (13 weeks in relation to international
surrogacy proceedings).67
However, Family Court judges interviewed as part of Te Whare Wānanga
o Waitaha | University of Canterbury’s research project
Rethinking
Surrogacy Laws noted that there is often a considerable delay between
the filing of the adoption application and
the hearing, due to the high workload
of the Family Court.68 Until
a final adoption order is made, the intended parents lack full parental rights
and responsibilities for the child, even though
it is likely that they will
be the child’s primary carers throughout this time.
- 7.49 Several
people have raised concerns about the complexity of this process and the lack
of lawyers with experience advising
on adoption following a surrogacy
arrangement. We also note that, if a social worker approves the intended parents
caring for the
child in the absence of an interim adoption order, that approval
only remains in place for one month unless an application for an
adoption order
is made in that time. This means that the court documentation should be filed
within one month of the child’s
birth. As part of that process, the
child’s birth needs to be registered and a birth certificate obtained, and
the necessary
forms and affidavits need to be completed and submitted to the
Court. This creates a significant amount of procedural complexity
at a time when
intended parents are caring for a newborn child.
- 7.50 The cost of
the adoption process is also a significant issue. Often this process comes after
a comprehensive ECART process, which
will have already cost the intended parents
thousands of dollars. One intended parent, who organised the 2019 Petition,
wrote that
“[t]his unnecessarily burdensome and expensive process means
adoption is out of reach for many New Zealanders and this simply
should not be
the case”.69
Current
arrangements may deter formalising parent-child relationships
- 7.51 The
problems with the current law may deter intended parents from formalising their
relationship with their child.
- 7.52 In 2005,
the Commission concluded that the current law was resulting in children being
cared for by one or both parents who
had no legal standing in relation to the
child.70 From its
consultation, a common scenario seemed to be that the surrogate would record the
intended father’s name on the birth
certificate and the intended
parents would simply take custody of the child and care for them on a
day-to-day basis.71
67 Family Court
Caseflow Management Note (November 2017) at 5.
68 Debra Wilson Understanding the
Experience and Perceptions of Surrogacy Through Empirical Research: Judges
Survey
(Te Whare Wānanga o Waitaha | University of Canterbury, May 2020) vol 2
at 10.
69 Letter from Christian Newman to All
Members of Parliament regarding Surrogacy Law Reform (8 June 2020) at 3.
70 Te Aka Matua o te Ture | Law
Commission New Issues in Legal Parenthood (NZLC R88, 2005) at [7.57].
71 Te Aka Matua o te Ture | Law
Commission New Issues in Legal Parenthood (NZLC R88, 2005) at [7.7].
- 7.53 We do not
know whether this practice is continuing today and, if so, how common it is. In
2017, Associate Professor Debra Wilson
said that anecdotal evidence (in the form
of discussions with lawyers) suggests “a significant disparity”
between the
number of surrogate-born children in Aotearoa New Zealand and the
number of those children that have a legally recognised relationship
with their
parents.72
- 7.54 Some Family
Court judges have also expressed the view that some intended parents in a
traditional surrogacy arrangement may not
consider it necessary or worth the
hassle and expense to apply for an adoption order. 73 We note that this is possible
even in a gestational surrogacy arrangement that has been approved by ECART, as
no one monitors the
parties after the child is born to ensure that an adoption
application is made.
- 7.55 Wilson has
identified several possible reasons why intended parents might not apply for an
adoption order:74
(a) First,
some intended parents might not be aware that they need to adopt their child in
order to become the legal parents. However,
this reason may be less common today
if there is increased public awareness of surrogacy and legal parenthood in
surrogacy arrangements.
(b) Second, some intended parents may object in principle to the idea that
they must adopt their own child, particularly if that
child is their genetic
child, and therefore refuse to go through the legal process.
(c) Third, intended parents who have had a child as a result of a commercial
surrogacy arrangement may be deterred by the criminal
sanctions on commercial
surrogacy from publicising the circumstances of the child’s gestation and
birth.
- 7.56 If the
intended parents’ legal relationship with their child is not formalised,
the child is in a vulnerable position and
lacks those protections afforded to
them by legal parenthood. For example, the intended parents might not be able to
consent to medical
treatment on the child’s behalf or enrol the child in
school. They cannot apply for a passport for the child or ensure that
the child
is entitled to the various benefits that flow from the legal parent-child
relationship, discussed above.
- 7.57 The
surrogate is also left in a vulnerable position because she would remain the
child’s legal parent with all the
associated parental rights and
responsibilities. If the surrogate had a partner when she became pregnant,
that person would
also remain the child’s legal parent in the absence of
an adoption. This may be a source of ongoing anxiety or concern.75
- Debra
Wilson “Avoiding the Public Policy and Human Rights Conflict in Regulating
Surrogacy: The Potential Role of Ethics Committees
in Determining Surrogacy
Applications” (2017) 7 UC Irvine L Rev 653 at
656.
73 Debra Wilson
Understanding the Experience and Perceptions of Surrogacy Through Empirical
Research: Judges Survey
(Te Whare Wānanga o Waitaha | University of Canterbury, May 2020) vol 2
at 5.
- Debra
Wilson “Avoiding the Public Policy and Human Rights Conflict in Regulating
Surrogacy: The Potential Role of Ethics Committees
in Determining Surrogacy
Applications” (2017) 7 UC Irvine L Rev 653 at 657.
- This
was evident from the Commission’s consultation in 2005: Te Aka Matua o te
Ture | Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
[7.23].
OPTIONS FOR REFORM
- 7.58 There
is considerable variation in how legal parenthood in surrogacy arrangements is
determined in other jurisdictions. Having
considered the different approaches
and the existing regulatory framework under the Human Assisted Reproductive
Technology Act 2004
(HART Act), we have developed three options for reform,
which are:
(a) the pre-birth judicial model;
(b) the administrative model; and
(c) the post-birth judicial model.
- 7.59 How these
different models compare to the current adoption process is illustrated in the
diagram below.
Current process
Adoption order transfers legal parenthood to intended parents
with consent of surrogate and any partner
Birth of child (surrogate and any partner are legal
parents)
Parties enter surrogacy arrangement
Option 1:
Pre-birth judicial model
Pre-birth court order
finalised provided surrogate does not withdraw consent within prescribed
period
Birth of child (intended parents are legal parents on interim
basis)
Pre-birth court order with surrogate's consent
Parties enter surrogacy arrangement
Option 2:
Administrative model
Birth of child (intended parents are legal parents provided
surrogate confirms consent)
Parties enter surrogacy arrangement
Option 3:
Post-birth judical
model
Post-birth determination of legal parenthood by court order
Birth of child (surrogate is legal parent)
Parties enter surrogacy arrangement
- 7.60 We have not
proposed a contractual model as an option for reform. This model is used in
some jurisdictions where surrogacy
arrangements are commercial in nature, such
as California. Under a contractual model, the parties enter an enforceable
surrogacy
contract prior to conception and may then seek a court order to
establish legal parenthood pursuant to the terms of that contract.
76 We do not think a contractual
model is appropriate for Aotearoa New Zealand. It would enable legal parenthood
to be determined by
private contract, which would be contrary to public policy
and “the very purpose of family law”.77 It would also fail to ensure
the best interests of the child is the
- See,
for example, Naomi Cahn and June Carbone “Surrogacy in the United States
of America” in Jens M Scherpe, Claire Fenton-Glynn
and Terry Kaan (eds)
Eastern and Western Perspectives on Surrogacy (Intersentia, Cambridge
(UK), 2019) 307 at 326.
- Claire
Fenton-Glynn and Jens M Scherpe “Surrogacy in a Globalised World:
Comparative Analysis and Thoughts on Regulation”
in Jens M Scherpe, Claire
Fenton-Glynn and Terry Kaan (eds) Eastern and Western Perspectives on
Surrogacy (Intersentia, Cambridge (UK), 2019) 515 at 571 and 584. See also
Henry Kha and Kelly Rankin “Mater semper certa est? Reconceiving
surrogacy
law in New Zealand” (2019) 9 NZFLJ 172 at 175; and Te Aka Matua o te Ture
| Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
[7.64].
paramount consideration and, for this reason, is inconsistent with international
best practice.78
Option
1: Pre-birth judicial model
- 7.61 Under this
option, a court order could be obtained before the child’s birth. The
effect of the court order would be that
the intended parents are the
child’s legal parents from birth.
- 7.62 This model
was recommended by the Commission in 200579 and in a Member’s Bill
first proposed in 2019.80 A
form of this model operates in South Africa and Greece, where a court order is
required to authorise the surrogacy arrangement prior
to conception, with the
effect that the intended parents will be the child’s legal parents from
birth.81 A similar model has
also been recommended in Ireland.82
- 7.63 The benefit
of this model is that it gives the parties certainty as to their legal rights
and responsibilities in relation to
the child from birth. However, a limitation
of this model is that a pre-birth order can only be obtained if the parties
are in
agreement. It does not provide a process to resolve disputes.
- 7.64 This model
also raises concerns about the timing of the surrogate’s consent.
International best practice is that the surrogate
must have an opportunity to
confirm or revoke her consent post-birth. 83 This is considered an
important safeguard that protects the surrogate’s rights and promotes
confidence in the integrity of
the circumstances surrounding the surrogacy
arrangement.84 In Portugal,
for example, a pre-birth judicial model was introduced in 2016 but was later
struck down by Portugal’s Constitutional
Court as unconstitutional.85 The Court made it clear that
the surrogate must retain the right to reconsider and revoke her consent
post-birth as the only
means to safeguard
- The
Verona Principles recommend that states “should ensure that the law does
not allow contractual provisions to irrevocably
determine legal parentage or any
other decisions regarding the status and/or care of a child in surrogacy”:
International Social
Service Principles for the protection of the rights of
the child born through surrogacy (Verona principles) (Geneva, 2021) at
[1.5]. See also [6.2].
79 Te
Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005), R15.
- Improving
Arrangements for Surrogacy Bill 2021 (undrawn Member’s Bill, Tāmati
Coffey MP). At the time of writing, the proposed
Member’s Bill has not
been drawn from the Member’s Bill ballot and introduced to the House.
- Claire
Fenton-Glynn and Jens M Scherpe “Surrogacy in a Globalised World:
Comparative Analysis and Thoughts on Regulation”
in Jens M Scherpe, Claire
Fenton-Glynn and Terry Kaan (eds) Eastern and Western Perspectives on
Surrogacy (Intersentia, Cambridge (UK), 2019) 515 at 534–535.
- Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(Department of Children, Equality, Disability, Integration and Youth,
Ireland, December 2020), R12 at 49.
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at
[10.5]–[10.6].
- See,
for example, Law Commission of England and Wales and Scottish Law Commission
Building families through surrogacy: A new law – A joint consultation
paper (CP244/DP167, 2019) at [7.82] and [7.100]; Martha Ceballos
“Parenthood in surrogacy agreements: a new model to complete the
puzzle” (2019) 9 NZFLJ 123 at 130; Te Aka Matua o te Ture | Law Commission
New Issues in Legal Parenthood (NZLC R88, 2005) at [7.61]–[7.64];
and International Social Service Principles for the protection of the rights
of the child born through surrogacy (Verona principles) (Geneva, 2021) at
[7.1].
- Law
no. 25/2016 (22 August 2016), as discussed in Rute Teixeira Pedro
“Surrogacy in Portugal” in Jens M Scherpe, Claire
Fenton-Glynn and
Terry Kaan (eds) Eastern and Western Perspectives on Surrogacy
(Intersentia, Cambridge (UK), 2019) 229 at
229–232.
“the continuity of her consent for the entire duration of the
contract” and to guarantee the respect for her fundamental
rights.86
- 7.65 The
Commission in 2005 recognised the need for the surrogate’s post-birth
consent and recommended that a pre-birth order
should only grant interim legal
parental status. After the birth, the surrogate should have 21 days to petition
the court to overturn
the interim order.87 Only if no petition is filed
in that time would the order be finalised.88 A similar provision has been
recommended in Ireland to give the surrogate the opportunity to raise an
objection during a prescribed
period after birth.89
- 7.66 We agree
that this model would need to provide for the surrogate to confirm her consent
(by not challenging the pre-birth order)
in a prescribed period after
birth.
Option 2:
Administrative model
- 7.67 The second
option is an administrative model. Under this model, the intended parents are
recognised as the child’s legal
parents by operation of law, if certain
requirements are met. There is no need to obtain a court order.
- 7.68 The
administrative model is a relatively recent development. Since 2011, it has been
adopted in several Canadian provinces (Ontario,
British Columbia and
Saskatchewan). In these jurisdictions, the intended parents are recognised in
law as the child’s legal
parents provided that:90
(a) a written surrogacy
agreement was entered into before the child was conceived; and
(b) after the child’s birth, the surrogate consents in writing to
relinquishing her entitlement to legal parenthood.
- 7.69 An
administrative model was also provisionally recommended by the Law Commission of
England and Wales and the Scottish Law Commission
in its 2019 consultation
paper.91 They proposed a model under
which the intended parents are the legal parents from
- Decision
no. 225/2018, as discussed in Rute Teixeira Pedro “Surrogacy in
Portugal” in Jens M Scherpe, Claire Fenton- Glynn
and Terry Kaan (eds)
Eastern and Western Perspectives on Surrogacy (Intersentia, Cambridge
(UK), 2019) 229 at 236–238 and
251.
87 Te Aka Matua o te Ture
| Law Commission New Issues in Legal Parenthood (NZLC R88, 2005),
R15.
88 Te Aka Matua o te Ture | Law
Commission New Issues in Legal Parenthood (NZLC R88, 2005) at [7.74].
- Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(Department of Children, Equality, Disability, Integration and Youth,
Ireland, December 2020), R13.
- Children’s
Law SS 2020 c 2, s 62(3); Children’s Law Reform Act 2016 (Ontario), s
10(2)–(3); and Family Law Act SBC
2011 c 25, s
29(2)–(3).
91 Law
Commission of England and Wales and Scottish Law Commission Building families
through surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at ch 8. An
administrative model has also been recommended in Iceland in a Bill introduced
in Parliament in 2015,
but that Bill did not progress following a change in
government: Hrefna Friđriksdóttir “Surrogacy in Iceland”
in Jens M Scherpe, Claire Fenton-Glynn and Terry Kaan (eds) Eastern and
Western Perspectives on Surrogacy (Intersentia, Cambridge (UK), 2019) 259 at
272–273. In Canada, an administrative model was also favoured by the
Manitoba Law
Reform Commission in its report Assisted Reproduction: Legal
Parentage and Birth Registration – Issue Paper (2014) at 36; and by
Quebec’s Advisory Committee on Family Law: Law Reform Commission of
Saskatchewan Assisted Reproduction & Parentage: Final Report (2018)
at [200]–[201]. In Australia, an administrative model was proposed in in
Tammy Johnson “Through the Looking-Glass:
A Proposal for National Reform
of Australia’s Surrogacy Legislation” in Paula Gerber and Katie
O’Byrne (eds) Surrogacy, Law and Human Rights (Ashgate, United
Kingdom, 2015) 31.
birth, subject to the surrogate exercising her right to withdraw her consent
within a specified period after birth.92 Like the Canadian model, the
Commissions have proposed that this model should only apply if the surrogacy
arrangement satisfied certain
eligibility requirements and procedural
safeguards, such as the existence of a pre-conception agreement that meets
prescribed requirements
and is supervised and countersigned by either a
regulated clinic or a regulated surrogacy organisation.93
- 7.70 The benefit
of this model is that it avoids the need for a court order, thereby
reducing the cost, delay and administration
in establishing legal parenthood.
It also addresses the concerns with pre-birth orders in relation to the timing
of the surrogate’s
consent identified with Option 1.
- 7.71 However, a
limitation of this model is that, like Option 1, it relies on the consent of the
surrogate and does not provide a
process to resolve disputes. In Canada, if the
surrogate does not provide consent, a party can apply to the court for an order
determining
legal parenthood. 94
The Law Commission of England and Wales and the Scottish Law Commission
have similarly proposed that, if the surrogate withdraws her
consent, the
intended parents could apply to court for an order that recognises them as the
child’s legal parents, provided
the child is already living with them or a
court has determined that the child’s primary residence should be with the
intended
parents.95
Option
3: Post-birth judicial model
- 7.72 Under this
option, the surrogate would be the child’s legal parent at birth, and the
intended parents, after a certain
period following the birth of the child, could
apply for a court order that has the effect of recognising them as the
child’s
legal parents and extinguishing the surrogate’s legal
parenthood. The court could only grant an order if satisfied that it
is in the
best interests of the child.
- 7.73 Versions of
this model are used in Australia96
and the United Kingdom, although the Law Commission of England and Wales
and the Scottish Law Commission have provisionally proposed
replacing this with
an administrative model for some surrogacy arrangements, discussed above.
- 7.74 The benefit
of this model is that, because it is a post-birth process, the court can
determine legal parenthood with the best
information, including information
about the post-birth intentions of the parties and how the child is being cared
for. This enables
the court to be satisfied that recognising the intended
parents as the child’s legal parents is the correct course of action
at
the time the order is made (not before). Because of the post-birth timing, this
model could also provide a process for disputes
over legal
92 Law Commission of
England and Wales and Scottish Law Commission Building families through
surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at [8.27] and
[8.87].
93 A regulated surrogacy organisation
is a not-for-profit intermediary.
- Children’s
Law SS 2020 c 2, s 62(9); Children’s Law Reform Act 2016 (Ontario), s
10(6); and Family Law Act SBC 2011 c
25, s
31.
95 Law Commission of
England and Wales and Scottish Law Commission Building families through
surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at
[11.51]–[11.52].
- Excluding
Northern Territory, which has no surrogacy laws. It is anticipated that
surrogacy laws will be introduced in 2021: Lauren
Roberts “The NT
Government will introduce surrogacy laws in 2021 — but it’s
‘too late’ for some”
ABC News (online ed, Australia, 16
January 2021).
parenthood to be resolved. However, as this model is similar to the current
adoption process in Aotearoa New Zealand, some of the
problems identified with
the current law above would also arise under this option, including the concerns
about the intended parents’
lack of legal rights and responsibilities in
relation to a child before the order is made, the utility of the post-birth
best interests’
assessment and the delay, cost and administrative burden
of a post-birth court process.
PROPOSALS FOR REFORM: THE DUAL PATHWAY APPROACH
- 7.75 We
propose a new legal framework for determining legal parenthood in surrogacy
arrangements that adopts both Options 2 and 3
above. Our view is that an
administrative model should apply to surrogacy arrangements that have met
certain safeguards but that
there is a need for a court-based process to be
available whenever these safeguards have not or cannot be met.
- 7.76 This legal
framework should be separate to adoption legislation to recognise that adoption
and surrogacy are different forms
of family building. The Status of Children Act
already governs legal parenthood of children conceived as a result of assisted
human
reproduction procedures, therefore this may be a logical setting for this
new legal framework. Alternatively, separate surrogacy
legislation may be
desirable.
- 7.77 Under our
proposed new legal framework, there would be two alternative pathways to
establish legal parenthood:
(a) Pathway 1: The intended parents are
the legal parents of the surrogate-born child by operation of law,
provided two key
conditions are met:
(i) The surrogacy arrangement was approved by ECART.
(ii) After the child is born, the surrogate confirms her consent to
relinquish legal parenthood.
(b) Pathway 2: Whenever Pathway 1 does not apply, the surrogate is the legal
parent at birth and an application can be made to the
Family Court for a
post-birth order determining the intended parents are the legal parents of the
surrogate-born child.
- 7.78 The diagram
below illustrates how the new legal framework would work in
practice.
Yes
Pathway 1 applies; Intended parents are recognised in law as
legal parents
Yes
Has surrogate confirmed consent post-birth?
ECART approval prior to conception?
No
No
Pathway 2 applies: Intended Parents apply to Family Court for
order recognising them as legal parents
Pathway 2 applies: Intended Parents
apply to Family Court for order recognising them as legal parents
- 7.79 We consider
that the proposed new legal framework would:
(a) promote the best
interests of the child, as Pathway 1 would confer legal parenthood on those
who intend to raise the child
at an early opportunity, but only where the
surrogacy arrangement has satisfied the requirements of the ECART process;
(b) reduce costs, delay and administration in appropriate cases at a time
when the surrogate will be recovering from the birth and
the intended parents
will be caring for a newborn child;
(c) give greater weight to the parties’ intentions and, in doing so,
respect their autonomy subject to appropriate safeguards;
(d) provide greater clarity and certainty about the parties’ rights and
obligations and a clear pathway to resolve disputes
in the event of
disagreement;
(e) remove cases from the court system where judicial oversight is not
required, reserving judicial oversight for cases that do require
greater
scrutiny or where a conflict arises;
(f) provide a clear incentive to utilise the ECART process, which may reduce
the risk of problems arising during and after the pregnancy;
(g) support intended parents to enter surrogacy arrangements in Aotearoa New
Zealand rather than offshore – for some intended
parents we spoke with,
dissatisfaction with the current law was a reason why they pursued international
surrogacy, and providing
through Pathway 1 a clear and simple pathway to legal
parenthood may therefore reduce the attraction of international surrogacy with
its related risks (discussed in Chapters 3 and 9); and
(h) promote consistency with international best practice.97
- 7.80 We do not
favour a pre-birth judicial model (Option 1). When the Commission recommended
this model in 2005, the regulation of
surrogacy arrangements was in its infancy.
The HART Act had only been passed one year previously, and ECART and ACART had
not yet
been established. As we explain in Chapter 5, the ECART process is now
generally seen as a robust process that protects the rights
and interests of all
parties involved, including the rights of the child. Therefore, we do not think
a court process is necessary
in addition to ECART approval when there is no
dispute over legal parenthood.
- 7.81 Below we
detail how we think the dual pathway approach could operate in
practice.
Pathway
1: Recognition of legal parenthood by operation of law
- 7.82 Pathway 1
would apply to surrogacy arrangements that obtained ECART approval provided the
surrogate confirms her consent to relinquish
legal parenthood after the child is
born. As noted above, requiring the surrogate to confirm her consent
post-birth is
- The
Verona Principles emphasise the need for an established framework for
pre-surrogacy arrangements and do not require a post-birth
judicial process to
determine legal parenthood in every case. Rather, a court or other competent
authority should conduct a post-birth
best interests of the child determination
in surrogacy arrangements where there have not been adequate
pre-surrogacy arrangements or where the surrogate has not confirmed her consent
post- birth: International Social Service
Principles for the protection of
the rights of the child born through surrogacy (Verona principles) (Geneva,
2021) at [10.6] and [10.7].
considered an important safeguard that protects the surrogate’s rights and
promotes confidence in the integrity of the circumstances
surrounding the
surrogacy arrangement.
- 7.83 There are
two different ways Pathway 1 could work in practice:
- Option A: The
surrogate is the child’s legal parent at birth, and after birth, she can
sign a statutory declaration confirming
her consent to relinquish all parental
rights and responsibilities in favour of the intended parents. This is the
approach in Ontario,
British Columbia and Saskatchewan. Once this declaration
is signed, the intended parents are recognised as the child’s legal
parents and can then register the child’s birth. The law could specify
that, before the specified period expires, the
intended parents and the
surrogate shall share all parental rights and responsibilities in relation to
the child.98
- Option B: The
intended parents are the legal parents at birth, but the surrogate retains a
right to withdraw her consent for a prescribed
period after birth. This is
similar to the Commission’s 2005 recommendation that the surrogate should
have the opportunity
to petition the court to overturn a pre-birth interim
order.99 This option has also
been provisionally recommended by the Law Commission of England and Wales and
the Scottish Law Commission and
in Ireland. If the surrogate exercises her right
to withdraw consent, parenthood could automatically revert to the surrogate or
remain
with the intended parents pending a court determination under Pathway 2.
If the surrogate does not exercise her right to withdraw
consent, the intended
parents could register the child’s birth after the prescribed period
expires.
- 7.84 Both
options have advantages and disadvantages. An advantage of Option A is that
legal certainty can be achieved relatively quickly.
However, a short stand-down
period immediately after birth might be appropriate to ensure the integrity of
the surrogate’s
consent. For example, a surrogate cannot give consent in
Ontario until seven days after birth or three days in Saskatchewan. A
disadvantage
of Option A is that it involves a further administrative step to be
taken post-birth before the intended parents are recognised as
the child’s
legal parents.
- 7.85 An
advantage of Option B is that the intended parents are recognised from birth as
the child’s legal parents (albeit on
an interim basis until the end of
the prescribed period), and it avoids the need for further administrative
steps. A disadvantage
of Option B is that it would take longer to achieve legal
certainty than Option A. The prescribed period during which a surrogate
has the
right to withdraw her consent would need to provide for “an appropriate
reflection period” post-birth100 and reflect the added burden
on the surrogate under Option B to withdraw consent by petitioning the court. In
2005, the Commission
98 See, for example,
Children’s Law SS 2020 c 2, s 62(5)–(6); and Children’s Law
Reform Act RSO 1990 c 12, s 10(5).
- Te
Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005), R15. A similar model has also been suggested in Ruth Walker and
Liezl van Zyl “Surrogacy and the law: three
perspectives (2020) 10 NZFLJ
9 at 14; Martha Ceballos “Parenthood in surrogacy agreements: a new model
to complete the puzzle”
(2019) 9 NZFLJ 123 at 131; and Henry Kha and Kelly
Rankin “Mater semper certa est? Reconceiving surrogacy law in New
Zealand” (2019) 9 NZFLJ 172 at 176–177.
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at
[10.5].
suggested a 21-day period, and the Law Commission of England and Wales and the
Scottish Law Commission have tentatively suggested
a period that is one week
less than the period for birth registration.101 In Aotearoa New Zealand,
parents are expected to register a birth within two months, so a comparable
timeframe for a right to withdraw
consent could be six weeks, or 42 days, to
enable the intended parents sufficient time to then register the child’s
birth after
the prescribed period ends.
- 7.86 We are
interested in your views on whether Option A or Option B should be adopted and
what timeframe should apply under the preferred
option.
Should Pathway 1 apply only to gestational surrogacy
arrangements?
- 7.87 In
2005, the Commission’s view was that a distinction should be made based on
whether the intended parents are full genetic
parents, are partially genetically
connected or have no genetic connection to the child.102 If there is no genetic
connection, the Commission recommended intended parents be subject to the same
process and requirements as
apply to adoption.103
- 7.88 We agree
that genetic connection is an important consideration, especially when
considering the child’s best interests,
as we identify below. However, we
do not think that the legal pathways for establishing legal parenthood should
differ depending
on genetic connection. Legal parenthood laws must work for all
types of surrogacy arrangements from traditional to gestational. All
forms of
gestational surrogacy should be accommodated, including where both intended
parents’ gametes are used, where only
one intended parent’s gametes
are used and where both a donor ovum and donor sperm are used.104 In all surrogacy
arrangements, the parties’ shared pre-conception intention is that the
intended parents will raise the child
as their own. Under Pathway 1, only
arrangements that received ECART approval would qualify. All other surrogacy
arrangements, and
in the event of any objection raised by the surrogate, would
follow Pathway
2.
Pathway 2:
Family Court determination
- 7.89 Pathway 2
would provide a mechanism for determining legal parenthood when Pathway 1
does not apply.
- 7.90 It is
inevitable that some surrogacy arrangements will not satisfy the criteria for
Pathway
1. Traditional surrogacy arrangements can proceed privately without clinic
assistance, and while we propose in Chapter 5 that the
regulatory framework
should better accommodate traditional surrogacy arrangements, some may proceed
without ECART approval.
In addition, in very rare cases, a surrogate
might revoke her consent during
101 Law Commission of
England and Wales and Scottish Law Commission Building families through
surrogacy: A new law
– A joint consultation paper (CP244/DP167, 2019) at [8.27].
102 Te Aka Matua o te Ture | Law
Commission New Issues in Legal Parenthood (NZLC R88, 2005) at [7.67].
103 Te Aka Matua o te Ture | Law
Commission New Issues in Legal Parenthood (NZLC R88, 2005) at [7.67].
- A
similar view is taken by Ruth Walker and Liezl van Zyl Towards a Professional
Model of Surrogate Motherhood (Palgrave MacMillan, London, 2017) at 116.
They argue that “jurisdictions where gametes are demanded from an intended
parent
as a condition of approving the surrogacy arrangement are doing something
profoundly unethical”, at 117.
pregnancy or after the child is born, preventing that arrangement from following
Pathway
1. In Chapter 9, we also propose that Pathway 2 should be followed to establish
legal parenthood in international surrogacy arrangements.
- 7.91 Under
Pathway 2, the surrogate would be the child’s legal parent at birth,
and the intended parents would be able
to apply to the Family Court for an
order determining that they are the child’s legal parents. The Family
Court should
have the power to grant the order or make any other
determination as it sees fit. Unlike adoption, which is a transfer of
legal
parenthood, a determination of legal parenthood under Pathway 2 should be
deemed to be effective from the child’s
birth.105
- 7.92 The Family
Court’s exercise of discretion should be clearly guided by a set of
relevant considerations. In Chapter 3, we
identify that the paramountcy of the
best interests of the child should be a guiding principle of surrogacy law
reform. Accordingly,
we think that, when a court is asked to determine the legal
parenthood of a surrogate-born child, the paramount consideration should
be the
best interests of the child.
- 7.93 Drawing on
the Verona Principles, the Commission’s 2005 recommendations and
approaches in other jurisdictions, matters
that could be considered when
determining the best interests of the child are:106
(a) the parties’
intentions when entering into the surrogacy agreement;
(b) the child’s genetic and gestational links to each of the parties to
the surrogacy arrangement;
(c) all sibling relationships of the child;
(d) the ability of each of the parties to facilitate the child’s
relationships with other people involved in the creation of
the child;
(e) the value of a stable family unit in the child’s development;
(f) the likely effect of the decision on the child, including psychological
and emotional impact, throughout the child’s life;
(g) any harm that the child has suffered or is at risk of suffering;
(h) the child’s ascertainable wishes and feelings regarding the
decision, taking account of the child’s age and understanding;
(i) the views of wider family and whānau, if appropriate; and
(j) all circumstances in relation to the surrogacy arrangement.
The need for a social worker assessment
- 7.94 Our
preliminary view is that the Family Court should be required to request a social
worker’s report for any case considered
under Pathway 2 in the same way
the Court does for adoptions.
105 See, for example,
Children’s Law Reform Act RSO 1990 c 12, s 15(2).
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [6.7]; Law
Commission of England and Wales and Scottish Law Commission Building families
through surrogacy: a new law – A joint consultation paper
(CP244/DP167, 2019) at [8.107]–[8.117]; and Te Aka Matua o te Ture |
Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
[7.75].
- 7.95 The
difference between adoption and surrogacy calls into question whether intended
parents’ suitability to care for and
raise the child should be assessed in
the same way as prospective adoptive parents. However, in Chapter 5 we recognise
that some
form of assessment as part of the ECART process may still be
appropriate to safeguard the child’s best interests and ensure
the state
meets its obligations under the United Nations Convention on the Rights of the
Child.
- 7.96 Cases under
Pathway 2 will either not have gone through the ECART process or will have
involved some conflict between the parties.
In these circumstances, we think
that an independent assessment of the best interests of the child would provide
an important safeguard
and assist the Court’s consideration of the issues.
We are interested in views as to what the social worker assessment should
address and how this process could be tailored to the specific circumstances of
surrogacy.
Should the Family Court have the power to appoint a lawyer for
the child?
- 7.97 An
additional safeguard or an alternative to requiring a social worker’s
report could be to provide for a lawyer for the
child to be appointed to
independently represent the child in every case or when ordered by the Court.
This would be consistent with
the Verona Principles, which state that, in cases
requiring a post-birth best interests of the child determination, the child
should
have their rights independently represented by a legal guardian or other
competent authority.107
However, we note that a survey of Family Court judges with experience in
adoptions involving surrogacy did not think this was necessary
under the current
adoption model (where social worker reports are required).108
Parenthood
status of the surrogate’s partner
- 7.98 We do not
think that the surrogate’s partner should be presumed to be a legal
parent of a surrogate-born child at
birth. While the surrogate’s
partner performs an important role in supporting the surrogate throughout the
arrangement,
we think that it is inappropriate that they should have full
parental rights and responsibilities for a child they have not
been
directly involved in the creation of and do not intend to raise. In the rare
situation where the surrogate’s partner donates
gametes in the
surrogacy arrangement, they should be treated as any other donor under the
Status of Children Act and not be
considered a legal parent at birth.
- 7.99 The Status
of Children Act should therefore be amended to clarify that the
child’s sole legal parent at birth is the
surrogate (unless the intended
parents are the child’s legal parents under Pathway 1). This would avoid
the need for the
surrogate’s partner to confirm their consent to
relinquish legal parenthood under Pathway 1 or to participate in proceedings
under Pathway 2 (unless they wish to do so). As noted above, we think the Family
Court should have broad jurisdiction under Pathway
2 to make any determination
as to legal parenthood as it sees fit, which would provide a pathway for the
surrogate’s partner
to be recognised as a legal parent in the rare
scenario where the Family Court finds that to be in the child’s best
interests.
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at
[2.3].
108 Debra Wilson
Understanding the Experience and Perceptions of Surrogacy Through Empirical
Research: Judges Survey
(Te Whare Wānanga o Waitaha | University of Canterbury, May 2020) vol 2
at 17.
QUESTIONS
|
|
Q18
|
Do you agree with the issues we have identified with the process for
establishing
|
legal parenthood in surrogacy arrangements? Are there other issues we
should consider?
|
Q19
|
Do you agree with proposed Pathway 1 to replace the adoption process
with
|
recognition of the intended parents as the child’s legal parents by
operation of law when a surrogacy arrangement receives ECART
approval and the
surrogate consents?
|
Q20
|
Do you prefer Option A or Option B to confirm the surrogate’s consent
under
|
Pathway 1, or is there another option we should consider?
|
Q21
|
Do you agree with proposed Pathway 2, which introduces a Family Court
process
|
for establishing legal parenthood when the conditions under Pathway 1 have
not been met?
|
Q22
|
Do you agree with our proposed list of relevant considerations the Family
Court
|
should have regard to when determining the legal parenthood of a
surrogate-born child? Are there other considerations you would include
in this
list?
|
Q23
|
Do you agree that the Family Court should seek a social worker’s
report when
|
determining the legal parenthood of a surrogate-born child?
|
Q24
|
Do you agree that the surrogate’s partner should not be a legal
parent of a
|
surrogate-born child at birth?
|
CHAPTER 8
Children’s
rights to identity and access to information
IN THIS CHAPTER, WE CONSIDER:
- children’s
rights to identity and access to information; and
- issues with the
current law and options for reform.
INTRODUCTION
- 8.1 In
Chapter 3, we explain that children have a range of rights that relate to
establishing their identity.1
An important element of a child’s right to identity is their right
to access information about their origins. As has been evident
from the past
practices of closed adoption and anonymous donor conception, when information
about a person’s origins is not
available to them, they may struggle to
establish their own sense of identity and experience a “deep psychological
need”
to know who brought them into the world.2
- Affirmed
by the United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened
for signature 20 November 1989, entered into force 2 September 1990), art 7(1).
See also art 8(1).
- Hemmes
v Young [2004] NZCA 289, [2005] 2 NZLR 755 at [117] (quotation marks
omitted); and Te Aka Matua o te Ture | Law Commission New Issues in Legal
Parenthood (NZLC R88, 2005) at [10.25]–[10.34]. See also Sonia Allen
and others “Donor Conception and Surrogacy” (seminar presented
to
United Nations Conference on the 30th Anniversary of the Convention on the
Rights of the Child, Geneva, 19 November 2019).
- 8.2 In the
context of surrogacy, the importance of ensuring that children have access to
information about their genetic and gestational
origins is now widely
acknowledged.3 The Verona
Principles, published in 2021, state that:4
The child’s ability to
preserve their identity, including their genetic, gestational and social
origins, has an on-going, lifetime
impact on the child and future generations,
in particular from the perspective of the child’s right to identity,
health and
cultural rights.
- 8.3 The
importance of information about genetic and gestational origins is also
recognised in Aotearoa New Zealand in the recently
published Ngā Paerewa
Health and Disability Services Standard NZS 8134:2021, discussed below.
- 8.4 The
Commission considered a child’s right to identity and access to
information about genetic origins in its 2005 report
New Issues in Legal
Parenthood.5 In this
chapter, we build on this work and look at ways to ensure a surrogate-born child
has access to their gestational as well as
genetic
origins.
THE CURRENT LAW
Birth
registration
- 8.5 When a child
is born in Aotearoa New Zealand, their birth is registered by the following
steps.
- 8.6 First, a
preliminary notice is given to a Registrar of Births, Deaths and Marriages
(Registrar) by completing and signing a standard
form within five working days
after the birth.6 The
preliminary notice is completed by the hospital or, if the birth took place
outside a hospital, by the attending doctor or midwife.7
- 8.7 Second, both
parents must jointly notify a Registrar of the birth as soon as is reasonably
practicable after the birth.8
In practice, the expectation is that parents register the
birth
- See,
for example, International Social Service Principles for the protection of
the rights of the child born through surrogacy (Verona principles) (Geneva,
2021) at [11.2]; Conor O’Mahony A Review of Children’s Rights and
Best Interests in the Context of Donor-Assisted Human Reproduction and Surrogacy
in Irish
Law (Department of Children, Equality, Disability, Integration and
Youth, Ireland, December 2020) at 32; Maud de Boer-Buquicchio Report of the
Special Rapporteur on the sale and sexual exploitation of children, including
child prostitution, child pornography
and other child sexual abuse material
UN Doc A/74/162 (15 July 2019) at [58]; Law Commission of England and Wales
and Scottish Law Commission Building families through surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at [10.1]; South
Australian Law Reform Institute Surrogacy: A Legislative Framework – A
Review of Part 2B of the Family Relationships Act 1975 (SA) (Report 12,
2018) at [24.5.1]; and Claire Achmad “Children’s Rights in
International Commercial Surrogacy: Exploring the
challenges from a child
rights, public international human rights law perspective” (PhD thesis,
Leiden University, 2018) at
ch 8.
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [11.1] (citations
omitted).
5 Te Aka Matua o te
Ture | Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
ch 10.
6 Births, Deaths, Marriages and
Relationships Registration Act 1995, s 5A.
- If
the birth occured outside a hospital and neither a doctor nor a midwife was
present, the preliminary notice must be given by the
occupier of the premises
where the birth took place or where the mother was admitted immediately after
the birth: Births, Deaths,
Marriages and Relationships Registration Act 1995, s
5A(3)(c).
8 Births, Deaths,
Marriages and Relationships Registration Act 1995, s 9(1).
within two months. 9 The
Registrar may accept registration by one parent in limited circumstances,
including if the birth mother is the sole parent at
law.10
- 8.8 In a
surrogacy arrangement, the surrogate will be the child’s legal parent at
birth, and therefore she will be responsible
for registering the birth of the
child.11 The surrogate will
be the child’s sole parent at law if she did not have a partner at the
time she became pregnant.12
- 8.9 The
information that must be contained in the preliminary notice and birth
notification is prescribed in regulations.13 There is no requirement to
include information about whether the child was born as a result of a surrogacy
arrangement or whether
the child was conceived using donated gametes (ovum or
sperm). Information about donor conception is captured separately, as we discuss
below.
Birth
certificates before and after adoption
- 8.10 Once a
birth is registered, a birth certificate can be issued, which will contain the
information prescribed under regulations.
14 A birth certificate that is
issued after the child’s birth but before an adoption will record the
surrogate and her partner
(if she has one) as the child’s parents and will
not include any information about the intended parents, even if they are the
child’s genetic parents. The birth certificate does not record that the
child is born as a result of a surrogacy arrangement.
- 8.11 Adoption is
the only way to transfer legal parenthood to the intended parents, as we explain
in Chapter 7. When a child is adopted
in Aotearoa New Zealand, the Family Court
must notify the Registrar-General of Births, Deaths and Marriages
(Registrar-General) of
certain information about the adoption, 15 and the Registrar-General
must record that information in the child’s birth registration. 16 If a child’s birth has
not already been registered (for example, if the child was born overseas as a
result of an international
surrogacy arrangement), the Registrar-General must
also record on the register the
- Te
Tari Taiwhenua | Internal Affairs “He whakaaturanga o te Rēhita
Whānautanga o te tamaiti i whānau i Aotearoa
| Notification of Birth
for Registration of child born in New Zealand” (9 December 2019) <www.govt.nz> at 1.
- Births,
Deaths, Marriages and Relationships Registration Act 1995, s 9(2)(a). Other
grounds for accepting a birth notification from
only one parent are if the other
parent is unavailable or it is not reasonably practicable to obtain the other
parent’s signature
because they are overseas or cannot be contacted within
a reasonable period of time or if requiring the other parent to sign the
form
would cause unwarranted distress to either of the parents: Births, Deaths,
Marriages and Relationships Registration Act 1995,
s
9(2)(b)–(c).
11 Pursuant
to Part 2 of the Status of Children Act 1969. See discussion in Chapter 7 of
this Issues Paper.
- Births,
Deaths, Marriages and Relationships Registration Act 1995, s 9(4); and Status of
Children Act 1969, s 22. The surrogate will
also be the sole parent of the child
if she had a partner but there is evidence that establishes that the partner did
not consent
to the procedure: Status of Children Act 1969, ss 18 and
27.
13 Births, Deaths,
Marriages and Relationships Registration (Prescribed Information) Regulations
1995.
- Births,
Deaths, Marriages and Relationships Registration Act 1995, s 67(1); and Births,
Deaths, Marriages and Relationships Registration
(Prescribed Information)
Regulations 1995, reg
6.
15 Births, Deaths,
Marriages and Relationships Registration Act 1995, s 23.
16 Births, Deaths, Marriages and
Relationships Registration Act 1995, s 24.
information relating to the date and place of the person’s birth if
satisfied of the correctness or likely correctness of that
information.17
- 8.12 Any birth
certificate issued after the adoption is registered must be issued in respect of
the child’s adoptive name and
must record the adoptive parents as the
child’s parents.18 There is
provision for the birth certificate to note that the child’s parents are
“adoptive parents”, but this
only applies if the adoptive parents
(or the child, once they turn 18) request that notation.19 In practice, we are not aware
of this having ever been requested by intended parents in surrogacy
arrangements.20
Access
to information about an adoption
- 8.13 No
centralised information is kept on surrogate-born children. However, those who
are adopted by their intended parents can access
some information relating to
the adoption under the Adult Adoption Information Act 1985.21
- 8.14 The Adult
Adoption Information Act establishes a regime for adopted people to access
information about their birth parents. Under
the Act, an adopted person can
request a copy of their original birth certificate from the Registrar-General
once they reach the
age of 20 years.22 If the adopted person was
adopted after 28 February 1986, the Registrar-
General must, on application of a request for an original birth certificate:23
(a) notify the adopted
person in writing of the counselling services available;
(b) send the original birth certificate to the relevant counselling provider
if the adopted person indicates that they desire counselling;
and
(c) if no indication is received from the adopted person within 28 days, hold
the original birth certificate on behalf of the adopted
person until that person
requests that it be sent to them.
- 8.15 Once the
original birth certificate has been obtained, an adopted person can then apply
to Oranga Tamariki for information relating
to their birth parents.24 An adopted person can request
assistance of a social worker to contact a birth parent on their behalf.25
17 Births, Deaths,
Marriages and Relationships Registration Act 1995, s 24(2).
18 Births, Deaths, Marriages and
Relationships Registration Act 1995, s 63(2).
19 Births, Deaths, Marriages and
Relationships Registration Act 1995, s 24(3)–(5).
- In
2005, the Commission observed that the annotation of adoptive parents is rarely
used: Te Aka Matua o te Ture | Law Commission
New Issues in Legal Parenthood
(NZLC R88, 2005) at [10.64].
- The
Adoption Act 1955 itself also provides for the inspection of adoption records
but only on very limited grounds that are unlikely
to be relevant in this
context: s 23. See, for example, Re VA (2001) 21 FRNZ 93; and Re MJ
FC Christchurch FAM-2003-009-004670, 21 January 2005 at
[14].
22 Adult Adoption
Information Act 1985, s 4.
- Adult
Adoption Information Act 1985, s 6. Different rules apply to adoptions before 1
March 1986 depending on whether the birth parents
have restricted the adopted
person’s access to identifying information: s
5.
24 Adult Adoption
Information Act 1985, s 9.
25 Adult Adoption Information Act 1985,
s 10.
Access to
information about donors
- 8.16 The Human
Assisted Reproductive Technology Act 2004 (HART Act) establishes a regime to
enable donor-conceived people to access
information about their donor or donors.
This may give a surrogate-born child access to some information about their
genetic origins
if they were conceived using donated gametes.
- 8.17 The HART
Act requirements, discussed below, only took effect on the commencement of the
Act in 2005. However, the HART Act
also provides for a voluntary register to be
maintained by the Registrar-General. 26 The voluntary register
enables people who donated gametes prior to 2005, as well as people who were
conceived using donated gametes
prior to 2005, to voluntarily provide
information to the Registrar-General for the purpose of connecting donors and
donor-conceived
children.
Collection of information
- 8.18 Fertility
service providers must collect certain information about donors, including
information about physical characteristics,
ethnicity and cultural affiliations,
medical history and reasons for donating. 27 If the donor is Māori,
information must also be collected about the donor’s whānau,
hapū (sub-tribe) and iwi
(tribe) to the extent that the donor is aware of
those affiliations.28
- 8.19 Providers
also have an obligation to put in place an effective system for being notified
of, or otherwise becoming aware of,
the births of donor-conceived children. 29 When a provider learns of the
birth of a donor-conceived child, they must take practicable steps to collect
information about the
child’s name and sex and the date and place of the
child’s birth.30
Retention of information
- 8.20 After
the birth of a donor-conceived child, the fertility services provider must
“promptly” give the Registrar-General
information about the
child’s birth as well as the donor’s name, address and date, place
and country of birth.31
- 8.21 The
Registrar-General must keep all information it receives about donor-conceived
children indefinitely.32 In
practice, it keeps this information on a register, which is known as the
“HART register”.33
26 Human Assisted
Reproductive Technology Act 2004, s 63.
27 Human Assisted Reproductive
Technology Act 2004, s 47(1).
28 Human Assisted Reproductive
Technology Act 2004, s 47(1)(h).
29 Human Assisted Reproductive
Technology Act 2004, s 52.
30 Human Assisted Reproductive
Technology Act 2004, s 53(1)(a).
31 Human Assisted Reproductive
Technology Act 2004, s 53(1)(b) and (2).
32 Human Assisted Reproductive
Technology Act 2004, ss 48(3) and 55(1).
- Te
Kāwanatanga o Aotearoa | New Zealand Government “Finding a child or
parent on the sperm and ovum donor list” (14
August 2017) <www.govt.nz>.
- 8.22 Fertility
service providers must keep information for a period of 50 years after the birth
of the donor-conceived child or until
the provider ceases to operate, if
earlier.34 At that point, the
provider must give the additional information collected about the donor,
described above, to the Registrar-General.35
Access to information
- 8.23 A
donor-conceived child can usually access information held on the HART register
or by a fertility service provider once they
turn 18.36 However, a Family Court can
authorise disclosure to a donor-conceived child aged 16 or 17 if the Court is
satisfied that disclosure
is in the best interests of the child.37 Before the child turns 18 and
in the absence of a court order, a child’s guardian can be given access to
information on request38 or
the child can be provided with information that does not identify the donor.39 In all circumstances, the
person requesting the information must be advised of “the desirability of
counselling”.40
- 8.24 A
donor-conceived child can be told about any genetic siblings but can only be
given identifying information if the siblings
(or their guardians) have already
given consent to the giving of access.41
- 8.25 A
donor-conceived child over the age of 18 can consent to the disclosure of
information about them to the donor.42 In the absence of consent, a
donor can only be told whether any children have been born as a result of their
donation and, if so,
the sex of each donor- conceived child.43 If a donor-conceived child is
given access to identifying information about a donor, the donor must be
notified.44
- 8.26 Any request
for information can be refused if the provider or Registrar-General is
satisfied, on reasonable grounds, that disclosure
“is likely to endanger
any person”.45
Ngā
Paerewa Health and Disability Services Standard
- 8.27 In 2021,
Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 was
approved under section 13 of the Health and
Disability Services (Safety) Act
2001 to replace the current Fertility Services Standard from February 2022. 46 All
healthcare
34 Human Assisted
Reproductive Technology Act 2004, ss 48(2) and 55(2)–(3).
35 Human Assisted Reproductive
Technology Act 2004, s 48(2).
36 Human Assisted Reproductive
Technology Act 2004, s 50(1) and 57(1).
37 Human Assisted Reproductive
Technology Act 2004, s 65.
38 Human Assisted Reproductive
Technology Act 2004, ss 50(2) and 57(2).
39 Human Assisted Reproductive
Technology Act 2004, ss 50(3) and 57(3).
40 Human Assisted Reproductive
Technology Act 2004, ss 50(5) and 57(4).
41 Human Assisted Reproductive
Technology Act 2004, s 58.
42 Human Assisted Reproductive
Technology Act 2004, s 59.
43 Human Assisted Reproductive
Technology Act 2004, ss 60(1) and 61(1).
44 Human Assisted Reproductive
Technology Act 2004, s 50(6).
- Human
Assisted Reproductive Technology Act 2004, ss 50(4), 60(4) and 61(3). A similar
provision applies to the voluntary register:
Human Assisted Reproductive
Technology Act 2004, s
63(10).
46 Pursuant to Health
and Disability Services (Safety) Standards Notice 2021.
providers, including fertility service providers, must comply with Ngā
Paerewa. Unlike the earlier Fertility Services Standard,
Ngā Paerewa
includes specific requirements for donation and surrogacy, including the
requirements that providers “encourage
and support people to inform
offspring of their genetic and gestational origins” and “store
information to enable access”.47 Ngā Paerewa does not
specify how these requirements should be met, although sector guidance
establishes an expectation that
providers will have written policies and
procedures in place before offering donation or surrogacy
services.
Current
practice
- 8.28 We do not
know how many intended parents choose not to tell their child about the
circumstances of their birth. Our initial consultation
suggests that many
intended parents are, or intend to be, open about the surrogacy arrangement with
their child. We do not know whether
this has historically been the case. The
past practices of closed adoption and anonymous donor conception demonstrate
that attitudes
to children’s rights and interests in knowing their origins
have changed significantly in recent decades.
- 8.29 Oranga
Tamariki has a role in assessing intended parents before they seek approval from
the Ethics Committee on Assisted Reproductive
Technology (ECART) and when an
application for an adoption order is made in the Family Court. We understand
that Oranga Tamariki
will provide information to intended parents about the
importance of being open with the child about their origins from an early
age.
- 8.30 It is
possible, however, that some children may not learn they were born as a result
of a surrogacy arrangement or the full details
of the people involved in their
creation until late in life (if at all).
ISSUES
- 8.31 There
are several problems with the current law that may make it difficult for a
surrogate- born child to access information
about their genetic and gestational
origins:48
(a) First,
surrogate-born children must rely on other people to tell them that they were
born as a result of a surrogacy arrangement
before they will know to access
information about the adoption or about any donor(s). As noted above, a birth
certificate will rarely
indicate that a child has been adopted, so without being
told, a person may never discover the full circumstances of their birth.
(b) Second, the HART register does not capture information about the
surrogate. A gestational surrogate does not use her ovum in conception
and so is
not a donor under the HART Act. Even if the surrogate used her ovum in a
traditional surrogacy arrangement, she would still
not be considered a donor,
because the HART Act defines a “donor” as a person “from whose
cells a donated embryo
is formed or from whose body a donated cell is
derived”, and a “donated cell” is defined as an in vitro human
gamete,
that is, a gamete that is outside a living organism.49 It is possible that
47 Ngā Paerewa Health
and Disability Services Standard NZS 8134:2021 at [1.10.1].
- Similar
issues were identified in Te Aka Matua o te Ture | Law Commission New Issues
in Legal Parenthood (NZLC R88, 2005) at
[10.11].
49 Human Assisted
Reproductive Technology Act 2004, s 5 (definitions of “donated
cell”, “donor” and “in
vitro”).
fertility clinics may hold some information about the surrogate and may enable
access to that information pursuant to the requirements
in Ngā Paerewa,
discussed above. However, in the absence of any statutory requirements or
process, clinics may adopt different
policies and procedures, which could lead
to inconsistent approaches across clinics.
(c) Third, the HART
register only captures clinic-assisted donations and other donations prior to
the commencement of the HART Act.
This means that, since 2005, if a traditional
surrogacy occurred outside a clinic using donated sperm or if donated gametes
were
used in an international surrogacy arrangement, the donor’s
information would not be recorded on the HART register.
(d) Fourth, the process for accessing information on the HART register is
unclear, as some information may be held in two different
places and the process
does not ensure that applicants have access to appropriate support. This issue
is anticipated to have consequences
in the near future as the first cohort of
people who were conceived using gametes donated after the HART Act came into
force will
soon be able to request information on the register.50
(e) Fifth, limited information may be available to a surrogate-born child
about the adoption. The Adult Adoption Information Act only
provides for access
to the information recorded on the original birth certificate and any
identifying information held by Oranga
Tamariki. It is very difficult to access
court adoption records. Family Court judges interviewed as part of Te Whare
Wānanga
o Waitaha | University of Canterbury’s research project
Rethinking Surrogacy Laws expressed the view that all surrogate-born
children
should have access to the court file.51 The social worker’s
report that is prepared for the court was considered particularly significant,
as it will often contain
important information about the surrogacy arrangement
and about whether the child was conceived with donated gametes.52 The social worker’s
report is not automatically available to adoptive parents, but in practice,
judges are often ordering the
social worker’s report be released to the
intended parents when an adoption order is made.53 Accessing the court file
later in a child’s life may, however, be more difficult in practice.
Additionally, if the intended
parents did not formalise their relationship with
their child through adoption, no information will be available under this route.
If, as we propose in Chapter 7, a court process is no longer required for
intended parents to acquire legal parenthood in some situations,
no information
will be available under this route in future.
(f) Sixth, even if relevant information is available under the Adult Adoption
Information Act or the HART Act, a surrogate-born child
can only access that
information once
- Rebecca
Hamilton and others “Gaping holes in law covering info for donor-conceived
people” Stuff (online ed, New Zealand, 25 May
2021).
51 Debra Wilson
Understanding the Experience and Perceptions of Surrogacy Through Empirical
Research: Judges Survey
(Te Whare Wānanga o Waitaha | University of Canterbury, May 2020) vol 2
at 13.
52 Debra Wilson Understanding the
Experience and Perceptions of Surrogacy Through Empirical Research: Judges
Survey
(Te Whare Wānanga o Waitaha | University of Canterbury, May 2020) vol 2
at 13.
- See,
for example, Moss v Shui [2020] NZFC 8443 at [21]; Re Ponte (adoption)
[2020] NZFC 7481 at [27]; and Re Weber (adoption) [2020] NZFC 7259 at
[18].
they turn 20 or 18 respectively. The 20-year age requirement to access adoption
information has been found by the Human Rights Review
Tribunal to be
discriminatory on the basis of age.54 In 2005, the Commission
also questioned the basis for an age restriction on accessing information
under the HART Act, noting
that it was “unclear what advantage there
is to a person to have their right to information about their origins withheld
from them until the age of 18”. 55 The existing age restriction
is arguably inconsistent with an approach that places the rights and
welfare of the child at the
centre of decision making. 56 As Ireland’s Special
Rapporteur on Child Protection has recently observed, “the right to
identity is a right of
the child; it is held during childhood, and does not
only crystallise upon turning 18”.57
(g) Seventh, as we
outline in Chapter 4, the problems with the current law may mean circumstances
arise where a surrogate-born child
is unable to access their whakapapa
(genealogy), which is likely to be a matter of particular concern to
Māori.
- 8.32 During
initial consultation, many intended parents we spoke with felt that their
child’s birth certificate should reflect
the reality of the roles played
by those involved in the child’s conception and birth. Some were
frustrated by the lack of
a system that could record this information.58
- 8.33 The
problems with the current law also appear inconsistent with public attitudes and
expectations around a child’s right
to identity. The Surrogacy Survey
indicated strong support for surrogate-born children having access to
information about their origins.
Overall, 83 per cent of respondents agreed that
surrogate-born children should have access to information about their origins,
10
per cent thought access to information should be for medical reasons only,
two per cent thought information about origins should
not be available and five
per cent were unsure.59
- 8.34 Respondents
who thought that surrogate-born children should have access to information about
their origins were also asked at
what age this information should be
available.60 Ages suggested
ranged from “birth” to 30 years. The average age selected was 15.3
years. However, the most common age
selected was 18 (125 respondents), followed
by 16 (40 respondents) and birth (30 respondents).
54 Adoption Action Inc
v Attorney-General [2016] NZHRRT 9, [2016] NZFLR 113 at
[238]–[256].
55 Te Aka Matua o te Ture | Law
Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
[10.80].
56 Te Aka Matua o te Ture | Law
Commission New Issues in Legal Parenthood (NZLC R88, 2005), R22.
- Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(Department of Children, Equality, Disability, Integration and Youth,
Ireland, December 2020) at 27.
- Similar
observations were made in Te Aka Matua o te Ture | Law Commission New Issues
in Legal Parenthood (NZLC R88, 2005) at [10.109].
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Public Perceptions Survey (Te Whare Wānanga o
Waitaha | University of Canterbury, May 2020) vol 3 at 157 (rounded to the
nearest percentage point).
- Debra
Wilson Understanding the Experience and Perceptions of Surrogacy Through
Empirical Research: Public Perceptions Survey (Te Whare Wānanga o
Waitaha | University of Canterbury, May 2020) vol 3 at
159.
- 8.35 We are also
conscious that DNA testing is increasingly accessible, and the growing
prevalence of genealogy websites means surrogate-born
children are able to
access information about their genetic origins online without any appropriate
support. Accordingly, there is
increasing urgency to address the problems with
the current law so that it keeps pace with advancements in
technology.
OPTIONS FOR REFORM
- 8.36 By
recognising surrogacy as a legitimate method of family building and providing a
legal framework to facilitate its use, we
consider the state has a duty to
ensure that surrogate- born children can access information about their genetic
and gestational
origins.61
This is consistent with international best practice.62
- 8.37 We have
identified two options for reform that could address the gaps in the current
law. We have not reached any preliminary
conclusions about which option should
be
preferred.
Option
1: Changes to birth registration and certificates
- 8.38 The first
option is to record more information about the circumstances of a person’s
conception and birth in the birth
register and on birth certificates. This could
be done in different ways:
(a) The information recorded on a birth
certificate could indicate that a child was born as a result of a surrogacy
arrangement.63 The birth
certificate could record the surrogate’s name and the details of any
donor used in conception. In this way, the birth
certificate would provide a
comprehensive record of the circumstances of the child’s conception and
birth. The concern with
this approach, however, is that it raises significant
privacy concerns for surrogate-born children. Birth certificates are often
relied on to establish a person’s identity in a range of different
circumstances. A surrogate-born child may not want the full
circumstances of
their birth to be disclosed in these contexts.64 In 2005, consultation on a
similar option also revealed concerns about the potential for offence,
embarrassment or discrimination.65
(b) All birth certificates could be annotated with a statement that alerts
the reader to the fact that more information about the
circumstances of the
child’s birth may
- A
similar view was reached in relation to enabling children to know they are
donor-conceived, in Te Aka Matua o te Ture | Law Commission
New Issues in
Legal Parenthood (NZLC R88, 2005) at [10.42].
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [11.2].
- This
option was envisaged in Tāmati Coffey’s proposed Member’s Bill:
Improving Arrangements for Surrogacy Bill 2021
(undrawn Member’s Bill,
Tāmati Coffey MP), cl 25.
- Similar
concerns were observed in Law Commission of England and Wales and Scottish Law
Commission Building families through surrogacy: a new law – A joint
consultation paper (CP244/DP167, 2019) at [10.81]. They did not propose
changes to short certificates, which are frequently used as a means of providing
information to the government, but did recommend changes to full-form birth
certificates to identify that the child was a result
of a surrogacy arrangement:
at
[10.84]–[10.85].
65 Te
Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005) at [10.55]–[10.56].
be held on the birth register. This was recommended by the Commission in 200566 on the basis that it would
signal the fact of other information while at the same time respecting the
privacy of individuals and their
families. 67 In 2021, the Advisory
Committee on Assisted Reproductive Technology (ACART) also recommended this
option in its advice to the Minister
of Health on the basis that it would
increase awareness of the HART register and make it easier for people to obtain
information
about their genetic origins.68
(c) A two-certificate
system could be introduced. A short-form birth certificate could record the
child’s legal parents, similar
to the current birth certificate, and be
used for identification purposes. In addition, a new long-form birth certificate
could give
a full account of the circumstances of the child’s conception
and birth, including whether the child was born as a result of
a surrogacy
arrangement and details of any donors who provided gametes used in conception.69 Long-form certificates could
have restricted access so that they are available only to the person named on
the certificate, their
guardians and possibly other family members.
- 8.39 A benefit
of these options is that they are proactive and ensure a person is automatically
given information about the circumstances
of their conception and birth or
guidance on where to find such information.
- 8.40 However,
each of these options would have wide implications for birth registration.
Currently, the birth register is a record
of a child’s legal parents.70 It does not provide a
comprehensive record of the circumstances of the child’s conception and
birth. This is evident by the
fact that donors are not recorded on the birth
register but on the separate HART register. Any of the options described above
would
therefore represent a shift in the purpose of the birth register. Options
(b) and (c) would also necessitate changes to all birth
certificates, not just
for those of surrogate-born children.
- 8.41 We think
that any changes that fundamentally affect the purpose of the birth register
should be considered as part of a broader
review of birth registration.71 This would enable a coherent
and consistent approach to be taken to the range of different circumstances of
conception, birth and
legal parenthood, including donor conception, adoption and
surrogacy. Such a review could reconsider the purpose of the birth register
in
- Te
Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005) at [10.54]–[10.62] and
R18.
67 Te Aka Matua o te Ture
| Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
[10.62].
- Advisory
Committee on Assisted Reproductive Technology ACART Advice and Guidelines for
Gamete and Embryo Donation and Surrogacy (June 2021), R10B and
[220]–[230].
- A
similar recommendation was made in Te Aka Matua o te Ture | Law Commission
Adoption and Its Alternatives: A Different Approach and a New Framework
(NZLC R65, 2000) at 173. However, this option did not receive significant
support in submissions on the Commission’s subsequent
review of new issues
in legal parenthood: Te Aka Matua o te Ture | Law Commission New Issues in
Legal Parenthood (NZLC R88, 2005) at
[10.50].
70 Te Aka Matua o te
Ture | Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at
[10.45].
- A
Bill is currently before the House that proposes some changes to birth
registration, including changes to enable parents to state
whether they want to
be listed as “mother”, “father” or “parent”:
Births, Deaths, Marriages,
and Relationships Registration Bill 2018 (296-2), cl
12(2A).
contemporary Aotearoa New Zealand, for whose benefit it exists, what information
it should provide about a child’s origins
and what it means to be recorded
as a “parent”.72
Option
2: Recording information about surrogacy in the HART register
- 8.42 The second
option is to record information about surrogacy arrangements separate to the
birth registration system as part of
the HART register. This might be the
preferred reform option in the absence of a wider review of the birth
registration system.
- 8.43 The purpose
of the HART register is to record information about a child’s origins, so
we think its function could be extended
to include information about a
child’s gestational as well as genetic origins.
- 8.44 This option
would, like Option 1, promote a child’s right to identity by preserving
information about their genetic and
gestational origins, consistent with
international best practice. 73
It would also increase the availability of information on the prevalence
of surrogacy in Aotearoa New Zealand. It would not, however,
necessitate
wide-reaching changes to the birth registration system as envisaged under Option
1.
- 8.45 However, a
disadvantage of this option is that a surrogate-born child is still reliant on
being told about the surrogacy arrangement
in order to know that they can access
information about that arrangement.
- 8.46 In
practice, this option would operate with our proposed pathways in Chapter 7 as
follows:
(a) When a birth is registered under Pathway 1 (that is,
where intended parents went through the ECART process and the surrogate confirms
her consent to relinquish legal parenthood), the intended parents would supply
information relating to the surrogacy arrangement
to the Registrar. The
Registrar would then record that information on the HART register.
(b) When Pathway 1 does not apply and instead the Family Court makes an order
determining the legal parenthood of a surrogate-born
child under Pathway 2,74 the Court would notify the
Registrar of the order, similar to the current process of notification of
adoption orders. The Registrar
would then update the information on the birth
register and record the details of the surrogacy arrangement on the HART
register.
This would enable information to be registered in relation to
international surrogacy arrangements that are considered under Pathway
2,
although, as we note in Chapter 9, donors may be anonymous in some cases.
- 8.47 This would
not affect the obligations on clinics to provide information to the Registrar-
General about donors and donor-conceived
people under the HART Act, but it may
mean
- A
similar view was reached in Law Commission of England and Wales and Scottish Law
Commission Building families through surrogacy: a new law – A joint
consultation paper (CP244/DP167, 2019 at [10.82] and [10.86].
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at
[11.6]–[11.7].
- This
would include the rare situation where a court declines to make an order
determining the intended parents are the child’s
legal parents. Relevant
information would still need to be recorded on the birth register and HART
register, especially if donor
gametes were used in
conception.
that multiple entries or information sources relate to one child, for example,
if they are the result of a gestational surrogacy
arrangement involving an ova
or sperm donor.
- 8.48 This option
is similar to recommendations made by the Commission in 2005. The Commission
recommended that the intended parents
of a surrogate-born child should be
required to notify the Registrar-General of the same information about the
surrogate as that
required to be notified under the HART Act and that
information should be available to surrogate-born children as prescribed under
that Act.75
- 8.49 This option
is also consistent with proposals suggested in 2019 by the Law Commission of
England and Wales and the Scottish
Law Commission. They proposed a dedicated
register of surrogacy arrangements that could be maintained as part of, or
alongside, the
existing Register of Information for donor-conceived people. 76 Ireland’s Special
Rapporteur on Child Protection also endorses a surrogacy register.77
Age and grounds for refusing access
- 8.50 We
think that entitlements to access information about a surrogacy arrangement
should align with rights to access information
about donor conception. Both
fundamentally relate to a child’s right to identity and access to
information about their origins.
- 8.51 We are
therefore interested in your views on whether the existing age requirements and
grounds for refusing access to information
on the HART register remain
appropriate. As explained above, a donor-conceived child must be 18 to access to
identifying information
on the HART register about a donor (in the absence of a
court order), and access can be refused on the grounds that disclosure is
likely
to endanger any person.
- 8.52 The grounds
for refusing access to information on the HART register are similar to the
grounds for refusing access to information
under the now repealed Privacy Act
1993.78 The new Privacy Act 2020 has
since replaced that ground with a more comprehensive provision that provides:79
An agency may refuse access
to any personal information requested if—
(a) the disclosure of the information would—
(i) be likely to pose a serious threat to the life, health, or safety of any
individual, or to public health or public safety; or
(ii) create a significant likelihood of serious harassment of an individual;
or
(iii) include disclosure of information about another person who—
- (A) is the
victim of an offence or alleged offence; and
- Te
Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005), R26. The Commission also recommended that the Notification of Birth
for Registration form should be amended to state
that under New Zealand law
parents must register details about a donor or surrogate, if one was used:
R27.
76 Law Commission of
England and Wales and Scottish Law Commission Building families through
surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at [10.92].
- Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(Department of Children, Equality, Disability, Integration and Youth,
Ireland, December 2020) at
33.
78 Privacy Act 1993, s
27(1)(d).
79 Privacy Act 2020, s 49(1).
- (B) would be
caused significant distress, loss of dignity, or injury to feelings by the
disclosure of the information; or
(b) after consultation is
undertaken (where practicable) by or on behalf of the agency with the health
practitioner of the individual
concerned, the agency is satisfied
that—
(i) the information relates to the individual concerned; and
(ii) the disclosure of the information (being information that relates to the
physical or mental health of the requestor) would be
likely to prejudice the
health of the individual concerned; or
(c) the individual concerned is under the age of 16 and the disclosure of the
information would be contrary to the interests of the
individual concerned;
or
(d) the disclosure of the information (being information in respect of the
individual concerned who has been convicted of an offence
or is or has been
detained in custody) would be likely to prejudice the safe custody or the
rehabilitation of the individual concerned.
- 8.53 These
changes reflect the Commission’s recommendations in 2011 to clarify that
access to information can be refused only
if disclosure would present a serious
threat to public health or public safety or to the life or health of any
individual.80 As a result of
the changes, the HART Act is now out of step with the grounds for refusing
access to personal information under the
Privacy Act 2020. It is timely,
therefore, to reconsider the provisions of the HART Act and whether the new
approach under the Privacy
Act 2020 should be adopted.
- 8.54 In
addition, given the lack of policy justification provided for the age
restriction in the HART Act 81
and our concerns identified above, we think it is important to revisit the
appropriateness of the age restriction.
- 8.55 Our
preliminary view is that the age restriction should be removed as a matter of
principle, and instead, the HART Act should
align with the grounds for refusal
in the Privacy Act 2020. This would mean that a child under the age of 16 may be
refused access
if that is contrary to their interests but that the grounds for
refusal for children over 16 would be limited to concerns about serious
risks to
health and safety. We think that this would be more likely to promote access to
information based on a person’s age
and understanding than an arbitrary
age restriction.
Counselling and ongoing support
- 8.56 We
are also interested in your views on whether the current provisions in the HART
Act in relation to counselling are adequate.
As noted above, people seeking to
access the HART register must be notified of the desirability of counselling.
However, concerns
have already been raised by donor-conceived people that these
provisions do not go far enough and that more needs to be done to ensure
that
donor-conceived people are
- Te
Aka Matua o te Ture | Law Commission Review of the Privacy Act 1993: Review
of the Law of Privacy Stage 4 (NZLC R123, 2011) at [3.74] and
R22.
81 As noted in Te Aka
Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005) at [10.80].
given the opportunity to receive independent
counselling before contacting their genetic relatives.82
- 8.57 The
approach adopted under the Adult Adoption Information Act does provide a
stronger emphasis on counselling, as outlined above.
An adopted person can
appoint Oranga Tamariki as their counselling agency, which would give them
access to government- funded counselling
and support.83 In 2005, the Commission
recommended counselling should be available to those seeking to access the
voluntary HART register and that
the Government should consider paying for or
subsidising such counselling.84
- 8.58 Our
preliminary view is that surrogate-born children should have the same rights to
access state assistance and benefits in the
form of counselling services as
adopted people under the Adult Adoption Information Act.
QUESTIONS
|
|
Q25
|
Do you agree with the issues we have identified with children’s
access to
|
information in surrogacy arrangements? Are there other issues we should
consider?
|
Q26
|
Do you prefer Option 1 or Option 2 to ensure that surrogate-born children
can have
|
the opportunity to access information about their genetic and gestational
origins?
|
- Rebecca
Hamilton and others “Gaping holes in law covering info for donor-conceived
people” Stuff (online ed, New Zealand, 25 May
2021).
83 Oranga Tamariki |
Ministry for Children “Finding your birth family” (12 April 2021)
<www.orangatamariki.govt.nz>.
84 Te Aka Matua o te Ture | Law
Commission New Issues in Legal Parenthood (NZLC R88, 2005), R24.
CHAPTER 9
International
surrogacy
IN THIS CHAPTER, WE CONSIDER:
- how
international surrogacy arrangements are provided for in Aotearoa New Zealand;
and
- issues with the
current law and options for reform.
INTRODUCTION
- 9.1 Over
the past two decades, international surrogacy, where the intended parents and
the surrogate do not live in the same country,
has become a global phenomenon.
New Zealanders are increasingly entering surrogacy arrangements in other
countries for a range of
reasons, as we explore in Chapter 2. International
surrogacy arrangements are typically commercial in nature, with commercial
surrogacy
now seen as a “booming, global business”.1
- 9.2 International
surrogacy arrangements present complex issues. The laws of two different
countries must be considered, which can
cause problems when intended parents
bring the child back to their country given the disparity in how different
countries regulate
surrogacy and legal parenthood. In addition, in some
countries, a surrogacy arrangement may lack the same protections for the child,
the surrogate and the intended parents as an arrangement entered in Aotearoa New
Zealand, potentially placing the parties at greater
risk.
- 9.3 These issues
are difficult to resolve through individual state action,2 and international efforts are
under way. Since 2010, the Hague Conference on Private International Law (Hague
Conference) has been
examining private international law issues in relation to
legal parenthood, including issues arising from international surrogacy
arrangements.3
An
- Permanent
Bureau of the Hague Conference on Private International Law A Study of Legal
Parentage and the Issues arising from International Surrogacy Arrangements
(Preliminary Document No 3C, March 2014) at [122]. See also Claire Achmad
“Children’s Rights in International Commercial
Surrogacy: Exploring
the challenges from a child rights, public international human rights law
perspective” (PhD thesis, Leiden
University, 2018) at 2–3.
- Permanent
Bureau of the Hague Conference on Private International Law A Preliminary
Report on the Issues Arising from International Surrogacy Arrangements
(Preliminary Document No 10, March 2012) at [44].
- For
more information on the Parentage / Surrogacy Project, see: The Permanent Bureau
of the Hague Conference on Private International
Law “Parentage /
Surrogacy” <www.hcch.net>.
Experts’ Group was convened in 2015 and is currently working on potential
provisions for an international instrument to address
legal parenthood as well
as a separate protocol on legal parenthood established as a result of
international surrogacy arrangements.
The Experts’ Group is expected to
submit its final report to the Hague Conference in 2023.
- 9.4 In the
absence of a uniform approach to the regulation of surrogacy and the recognition
of legal parenthood, individual states
need to consider how to provide for
international surrogacy arrangements in domestic law.
- 9.5 In this
chapter, we focus on the situation where intended parents live in Aotearoa New
Zealand and enter a surrogacy arrangement
offshore.
THE CURRENT LAW
- 9.6 International
surrogacy is not provided for in New Zealand law. The Human Assisted
Reproductive Technology Act 2004 (HART Act)
has no extraterritorial effect, 4 which means that intended
parents pursuing surrogacy offshore do not have to seek approval from the Ethics
Committee on Assisted Reproductive
Technology (ECART) and the prohibition on
commercial surrogacy in section 14 of the HART Act (discussed in
Chapter
6) does not apply.
Who are the
child’s legal parents?
- 9.7 When New
Zealanders enter an international surrogacy agreement, New Zealand law is
applied when determining the legal parents
of the child. As we explain in
Chapter 7, the Status of Children Act 1969 establishes rules that determine
legal parenthood in surrogacy
arrangements, and section 16 of that Act states
that these rules apply “whether or not the pregnancy resulted from a
procedure
carried out in New Zealand” and “whether or not the child
was born in New Zealand”.5
Under these rules, the surrogate and her partner (if she has one) are, for
all purposes, the legal parents of any surrogate-born child.6
- 9.8 This means
that, as with domestic surrogacy, the intended parents in an international
surrogacy arrangement will not be recognised
under New Zealand law as the legal
parents of a surrogate-born child. This is regardless of whether the intended
parents are the
child’s genetic parents or are recognised as the
child’s legal parents in the child’s country of birth.
- 9.9 Intended
parents must therefore adopt the surrogate-born child to acquire legal
parenthood under New Zealand
law.
Adoption
and international surrogacy arrangements
- 9.10 New Zealand
law recognises three different types of adoption: domestic adoption, overseas
adoption and intercountry adoption.
4 Claire Barrett (ed)
Family Law—Child Law (online looseleaf ed, Thomson Reuters) at
[SG11].
5 Status of Children Act 1969, ss
16(1)(b) and 16(2)(b).
- Status
of Children Act 1969, s 17–22. The surrogate’s partner will not be a
legal parent if there is evidence that establishes
that they did not consent to
the procedure: ss 18 and 27.
- 9.11 Intended
parents in an international surrogacy arrangement will typically rely on
domestic adoption, and the Government has established
a process for a
surrogate-born child to enter Aotearoa New Zealand to facilitate a domestic
adoption, as we describe below. The
effect of a domestic adoption is that the
child will be entitled to New Zealand citizenship by birth,7 a New Zealand passport8 and a New Zealand birth
certificate.9
- 9.12 An overseas
adoption can be recognised under New Zealand law if it meets the requirements
of section 17 of the Adoption Act
1955. If an overseas adoption is
recognised and at least one intended parent is a New Zealand citizen by
birth, the child
will be entitled to New Zealand citizenship by descent10 and a New Zealand passport.11 However, they will not be entitled to
a New Zealand birth certificate12
and will be unable to pass New Zealand citizenship on to any children
born outside New Zealand (unlike children adopted under
the Adoption Act, who
are considered New Zealand citizens by birth).
- 9.13 The
overseas adoption pathway is rarely used in the context of international
surrogacy. While it may be possible that some foreign
court orders transferring
legal parenthood to the intended parents may be recognised as an overseas
adoption, this will
be assessed by the Department of Internal Affairs on a
case-by-case basis when it receives an application to register a
child’s
citizenship by descent. Alternatively, an application can be made
to the High Court for a declaration that an overseas adoption
meets the
requirements under section 17 of the Adoption Act,13 although we are not aware of
this process ever being followed in the context of international surrogacy.
- 9.14 The
intercountry adoption pathway is not used in international surrogacy
arrangements. Intercountry adoption takes place under
the Hague Convention on
Protection of Children and Co-operation in Respect of Intercountry Adoption (the
Hague Convention).14 In 2010,
a Special Commission of the Hague Convention concluded that the Hague Convention
is inappropriate in cases of international
surrogacy.15 In Aotearoa New Zealand, the
Family Court’s established approach is that the Hague Convention will not
apply in the context
of an international surrogacy arrangement.16
- This
is because, for the purposes of the Citizenship Act 1977, a person adopted under
the Adoption Act 1955 is deemed to have been
born when and where the adoption
order was made: Citizenship Act 1977,s
3(2B)(d).
8 Passports Act
1992, s 3.
9 Births, Deaths, Marriages, and
Relationships Registration Act 1995, s 24(2).
10 Citizenship Act 1977, ss 3(2)(b) and
7.
11 Passports Act 1992, s 3.
- This
is because neither the birth nor the adoption is registered in Aotearoa New
Zealand under the Births, Deaths, Marriages, and
Relationships Registration Act
1995.
13 T v District Court
at North Shore (No 2) [2004] NZFLR 769 (HC) at [23].
- Convention
on Protection of Children and Co-operation in Respect of Intercountry Adoption
1870 UNTS 167 (opened for signature 29 May 1993, entered into force 14 June
1995). The Convention is given the force of law in Aotearoa New Zealand
under s
4 of the Adoption (Intercountry) Act 1997.
- Special
Commission on the practical operation of the 1993 Hague Intercountry Adoption
Convention Conclusions and Recommendations (17–25 June 2010) at
[25].
- The
Hague Convention applies where a child “habitually resident” in one
country is being moved to another country by adoptive
parents “habitually
resident” in another country. The Family Court has consistently held that
a child’s habitual
residence can be imputed from the intended
parent’s habitual residence in the context of international surrogacy,
and
Entry
to Aotearoa New Zealand – the joint government agency approach
- 9.15 In the
absence of any international instrument or New Zealand law addressing
international surrogacy, a New Zealand joint government
agency approach to
international surrogacy was developed. 17 This approach addressed New
Zealanders’ emerging use of international surrogacy through the
application of existing legal frameworks
and the development, in 2010, of the
Ministerial non-binding guidelines, discussed below.
- 9.16 A central
tenet of the joint government agency approach is the protection of the
rights of the child.18 As we
explore in Chapter 3, children born as a result of an international surrogacy
arrangement are at risk of a number of their rights
not being met, including
rights to identity, nationality, family life, health and freedom from
discrimination.
- 9.17 The joint
government agency approach also responded to specific cross-border issues that a
child born to a surrogate overseas
might face when seeking to travel to Aotearoa
New Zealand:
(a) Until an adoption is finalised, the absence of a
legal parent-child relationship between the intended parents and the
surrogate-born
child means that the child will not be automatically entitled to
New Zealand citizenship (unless the surrogate or her partner is
a New Zealand
citizen),19 even if the child
is a genetic child of one or both intended parents.
(b) The child therefore has to travel to Aotearoa New Zealand on the passport
issued in their country of birth. However, each country
regulates surrogacy
differently, and some countries, such as Ukraine and Georgia, will not grant
citizenship to a child born in that
country if the intended parents are foreign
citizens. This can create a situation of statelessness for the child, as they
will not
be a citizen of their country of birth or
therefore the Convention does not apply: Re application by L
[2003] NZFLR 529 (FC) at [16]; Re KJB and LRB [Adoption] [2010] NZFLR
97 (FC) at [23]–[27]; Re an application by KR and DGR to adopt a female
child [2011] NZFLR 429 (FC) at [10]; Re an application by BWS to adopt a
child [2011] NZFLR 621 (FC) at [53]–[54]; An application to adopt a
child by SCR and MCR [2012] NZFC 5466 at [30]; Re MSK [2013] NZFC
2064 at [8]; Re an application to adopt a child, Kennedy [2014] NZFC
2526, [2014] NZFLR 797 at [27]; Re an application by R (to adopt a child)
[2014] NZFC 7652, [2015] NZFLR
87 at [13]; Re C (adoption) [2015] NZFC 4072 at [7]; and Re
Clifford [2016] NZFC 1666 at [18]. See also discussion in Debra Wilson
“International surrogacy and the Adoption (Intercountry) Act: defining
habitual residence”
(2016) 8 NZFLJ 217. Contrast with the decision in
Re an application by DMW and KW [2012] NZFC 2915 at [33].
- The
agencies involved were Immigration New Zealand, Te Tari Taiwhenua | Department
of Internal Affairs, Te Manatū Whakahiato
Ora | Ministry of Social
Development, Tāhū o te Ture | Ministry of Justice and Manatū
Aorere | Ministry of Foreign
Affairs and Trade. The background to the joint
government agency initiative is described in Oranga Tamariki | Ministry for
Children
Submission on the Advisory Committee on Assisted
Reproductive Technology’s Proposed Donation Guidelines: for family
gamete donation, embryo donation, use of donated eggs with donated sperm and
surrogacy (2017).
- Oranga
Tamariki | Ministry for Children Submission on the Advisory Committee on
Assisted Reproductive Technology’s Proposed Donation Guidelines: for
family gamete donation,
embryo donation, use of donated eggs with donated
sperm and surrogacy (2017) at 4.
- A
person born outside Aotearoa New Zealand will, in most cases, be a New Zealand
citizen by descent if, at the time of the person’s
birth, their mother
or father was a New Zealand citizen: Citizenship Act 1977, s 7(1). The
Citizenship Act does not define “mother”
or “father”,
but the relevant provisions of the Status of Children Act apply “for all
purposes”: Status of
Children Act 1969, ss 17–18. Section 3(2) of
the Citizenship Act makes it clear that a person is deemed to be a child of a
New Zealand citizen if they have been adopted under one of the recognised
adoption pathways, discussed above.
of Aotearoa New Zealand until the adoption is finalised. This has the potential
to leave a child “marooned stateless and parentless”
in the country
of their birth.20
(c) Even if a
surrogate-born child is entitled to citizenship in their country of birth and
can obtain a passport, there are no immigration
instructions to facilitate the
entry of a surrogate-born child to Aotearoa New Zealand on a visa.21 The child will not be
eligible for a residence visa because the child is not a legal child of the
intended parents.22
- 9.18 The joint
government agency approach recognised the need to mitigate, as much as possible,
the risks and cross-border issues
identified above. A set of Ministerial non-
binding guidelines were developed and agreed by Cabinet in 2010. They are used
by the
Minister of Immigration when exercising discretion to grant a temporary
visitor visa in respect of a surrogate-born child. 23 Visitor visas are typically
granted for 12 months, during which time the adoption application will be made
to the Family Court.
- Re
X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] 1 FLR 733 at
[10]. In that case, intended parents based in the United Kingdom (UK)
had twins by surrogacy in Ukraine. While they were the child’s
legal
parents in Ukraine, they were not the child’s legal parents under UK law.
The children were eventually given discretionary
leave to enter the UK
“outside the rules” to afford the intended parents the opportunity
to regularise their status under
UK law, at [10]. On the risk of statelessness
in international surrogacy, see discussion in Maud de Boer-Buquicchio Report
of the Special Rapporteur on the sale and sexual exploitation of children,
including child prostitution, child pornography
and other child sexual abuse
material UN Doc A/74/162 (15 July 2019) at [28]–[30]; and Claire
Achmad “Children’s Rights in International Commercial Surrogacy:
Exploring the challenges from a child rights, public international human rights
law perspective” (PhD thesis, Leiden University,
2018) at 55–57 and
ch 7.
- Immigration
instructions set out immigration policy and are certified by the Minister of
Immigration under s 22 of the Immigration
Act 2009. Immigration instructions are
then applied by immigration officers when considering visa applications under s
26.
22 Immigration New Zealand
“International Surrogacy” <www.immigration.govt.nz>.
Confirmed in Re IL (dependent child)
[2020] NZIPT 205529 at [73] and [96].
- Pursuant
to the Minister’s power to grant a visa by special direction under
Immigration Act 2009, s 61A. The non-binding guidelines
may also be used by the
Minister of Internal Affairs when exercising statutory discretion to grant
citizenship in special cases.
However, we are not aware of this discretion being
exercised in relation to surrogate-born children. Even if citizenship were
granted,
this would not in itself establish a legal parent-child relationship
between the intended parents and the surrogate-born child.
- 9.19 A copy of
the non-binding guidelines is reproduced below.24
- Minister
may consider
- Whether
there is a genetic link between at least one of the commissioning persons and
the child.
- The
outcome that is in the best interests of the child.
- New
Zealand’s international obligations.
- The
nature of the surrogacy arrangement, i.e., is it altruistic or commercial?
- Whether
the commissioning persons intend to or have taken steps to secure legal
parenthood or other legal rights in respect of child
in NZ.
- What
the commissioning persons have done in the child’s country of birth to
secure legal parenthood or other legal rights in
respect of the child.
- Whether
the applicants have demonstrated respect for the laws of the jurisdiction in
which the surrogacy was carried out.
- Whether
there is satisfactory evidence of informed consent from the:
- - gamete
(egg/sperm donor (if relevant))
- - surrogate
mother for the surrogacy arrangement to take place (was she a willing
party?)
- - surrogate
mother (and her partner if relevant) for the child to depart the country of
birth and enter New Zealand
- - surrogate
mother (and her partner if relevant) for the child’s
adoption.
- Steps
taken by the commissioning persons to preserve the child’s identity, e.g.
do the commissioning persons intend to retain
information about the
child’s origins?
- Whether
the recognised authority of the birth country has agreed or objects to the child
leaving the country permanently.
- Any
other considerations that the Minister wishes to take into
account.
- 9.20 The pathway
established under the joint government agency initiative is publicised in a fact
sheet that is available on the relevant
government agency websites. 25 New Zealanders considering
international surrogacy are strongly advised to seek legal advice and consult
Oranga Tamariki and Immigration
New Zealand before beginning the process.26 Once a viable pregnancy is
achieved, Oranga Tamariki will start the domestic adoption process, which
involves undertaking an adoptive
applicant assessment (described in Chapter 7).
This will then form part of the briefing for the Minister of Immigration to
consider
when deciding to exercise discretion to grant a temporary
visa.
- Oranga
Tamariki | Ministry for Children, Immigration New Zealand, Te Tari Taiwhenua |
Internal Affairs and Manatū Aorere
| Ministry of Foreign Affairs and
Trade “Information Fact Sheet: International Surrogacy” (July
2020)
<www.orangatamariki.govt.nz> at
Appendix A.
- Oranga
Tamariki | Ministry for Children, Immigration New Zealand, Te Tari Taiwhenua |
Internal Affairs and Manatū Aorere
| Ministry of Foreign Affairs and
Trade “Information Fact Sheet: International Surrogacy” (July
2020)
<www.orangatamariki.govt.nz>.
- Oranga
Tamariki | Ministry for Children, Immigration New Zealand, Te Tari Taiwhenua |
Internal Affairs and Manatū Aorere
| Ministry of Foreign Affairs and
Trade “Information Fact Sheet: International Surrogacy” (July
2020)
<www.orangatamariki.govt.nz> at
1.
- 9.21 In
situations where a surrogate-born child cannot acquire a passport in their
country of birth, the Department of Internal Affairs
may issue a certificate of
identity to enable a child to travel to Aotearoa New Zealand. However, not all
countries accept a certificate
of identity as a valid travel document, which
can require intended parents and children to take circuitous routes back to
Aotearoa
New Zealand.
Impact of
Covid-19
- 9.22 The
cross-border issues posed by international surrogacy have been highlighted
during the Covid-19 pandemic. Globally, reports
have emerged of intended parents
being unable to travel to the surrogate-born child’s country of birth or
facing difficulties
seeking to return to their country with the surrogate-born
child.27 New Zealand intended
parents have also been affected by border closures and flight cancellations.28
- 9.23 The
Covid-19 pandemic also meant that some intended parents faced problems obtaining
a passport for the child in their country
of birth to enable them to travel to
Aotearoa New Zealand. To respond to this concern, the Principal Family Court
Judge issued a
Covid-19 Protocol for the adoption process to enable adoption
applications to be considered by the Family Court when the intended
parents and
child are not physically present in Aotearoa New Zealand.29 Under the Protocol,
applications are determined remotely to enable surrogate-born children to be
adopted and to consequently receive
New Zealand citizenship and a New Zealand
passport before travelling to Aotearoa New Zealand.
- 9.24 The
Protocol is intended as a temporary response to the Covid-19 pandemic. It will
operate until 23 September 2021 or upon expiry
of the Epidemic Notice issued
under the Epidemic Preparedness Act 2006, if earlier, unless the Protocol is
extended.
ISSUES
- 9.25 International
surrogacy poses some complex issues. Most issues arise because of the disparity
in the regulation of surrogacy
worldwide. This can create complex legal and
practical problems when intended parents bring the child back to Aotearoa New
Zealand,
as noted above. It also means that some international surrogacy
arrangements may lack the same protections for the child, the surrogate
and the
intended parents as an arrangement entered in Aotearoa New Zealand, potentially
placing the parties at greater risk. We explore
the potential risks of
international surrogacy in Chapter 3, where we conclude that the guiding
principles for surrogacy law reform
should include the principles
that:
(a) the best interests of the surrogate-born child should be
paramount;
(b) effective regulatory safeguards must be in place; and
27 See, for example, Maria
Varenikova “Mothers, Babies Stranded in Ukraine Surrogacy Industry”
The New York Times
(online ed, New York, 15 August 2020).
- Alanah
Eriksen “Surrogacy: Demand for overseas embryos, eggs, sperm increases in
New Zealand” NZ Herald (online ed, New Zealand, 27 February 2021);
and Gill Bonnett “Covid turmoil stops parents reaching overseas surrogate
babies”
Radio New Zealand (New Zealand, 8 September 2020).
- Principal
Family Court Judge Moran “Family Court Covid-19 Protocol for the Adoption
of New Zealand Surrogate babies born overseas”
(26 February
2021).
(c) intended parents should be supported to enter surrogacy
arrangements in Aotearoa New Zealand rather than overseas.
- 9.26 With these
risks and guiding principles in mind, below we consider issues with how
Aotearoa New Zealand’s current approach
to international surrogacy is
working in
practice.
How
is Aotearoa New Zealand’s approach to international surrogacy
working?
- 9.27 The current
approach is pragmatic, utilising the existing adoption and immigration legal
frameworks to ensure that:
(a) intended parents have a clear pathway
to enter Aotearoa New Zealand with the surrogate-born child and acquire legal
parenthood
under New Zealand law;
(b) children born as a result of a surrogacy arrangement overseas can acquire
the same legal rights and entitlements as if they had
been born in Aotearoa New
Zealand (including a New Zealand birth certificate, citizenship by birth and a
New Zealand passport); and
(c) the government can exercise an oversight role to mitigate, as much as
possible, the risks international surrogacy poses to the
child’s rights in
the absence of an international instrument that establishes agreed minimum
safeguards.
- 9.28 The current
approach has been described as having a “gatekeeping effect”, which
has “recalibrated the cross-border
surrogacy machine for New
Zealanders”.30 The
result is that intended parents are engaging with the New Zealand system and its
requirements earlier, with greater numbers seeking
legal advice in Aotearoa New
Zealand before or while engaging in an offshore process.31
Problems with the current approach
- 9.29 However,
the current approach can also be criticised in several
respects:
(a) First, the process is complex. It involves many steps,
some of which (such as the adoption process) were not designed specifically
for
international surrogacy. Intended parents may face delays in returning to
Aotearoa New Zealand with the child if they do not
start the process at the
appropriate time and could potentially face a period of family separation. This
may place additional financial
and emotional strain on the intended parents and
consequently raises concerns about whether the current approach is in the
child’s
best interests.
(b) Second, the intended parents will usually have already undergone a legal
process in the child’s country of birth. California
is the most common
destination for New Zealanders pursuing international surrogacy (see Chapter 2),
and there the intended parents
will usually obtain a pre-birth court order that
has the effect of establishing, under Californian law, that the intended parents
are the child’s legal parents from
- Margaret
Casey “Creating families and establishing parentage when there is a
disconnect between Assisted Reproductive Technologies
and the Legal System: A
New Zealand perspective of a global problem” (2017) 9 NZFLJ 51 at
53.
- Margaret
Casey “Creating families and establishing parentage when there is a
disconnect between Assisted Reproductive Technologies
and the Legal System: A
New Zealand perspective of a global problem” (2017) 9 NZFLJ 51 at
53.
birth. In other countries, the intended parents may have undergone a legal
process that closely aligns with the New Zealand adoption
process. In these
situations, the intended parents may feel that the adoption process adds
unnecessary expense and delay at a time
when they want to focus on caring for
the newborn child.
(c) Third, the domestic adoption process
itself is not appropriate for surrogacy arrangements, for the reasons we detail
in Chapter
7. In addition, in the context of international surrogacy, some have
expressed a concern that the outcome of the adoption process
is a foregone
conclusion in circumstances where the child has already been granted entry to
Aotearoa New Zealand and is living with
the intended parents. 32 By the time the Family Court
considers the adoption application, the arrangement will usually have already
been scrutinised by several
government agencies, with the Minister of
Immigration having approved entry to Aotearoa New Zealand with reference to the
Ministerial
non-binding guidelines. Family Court judges interviewed as part of
Te Whare Wānanga o Waitaha | University of Canterbury’s
research
project Rethinking Surrogacy Laws said that they felt “stuck between a
rock and a hard place” when considering
adoption applications following
international commercial surrogacy, as the alternative was that the child would
be deported back
to their home country, which would undoubtedly not be in their
best interests.33
Problems when a child is born in Aotearoa New Zealand as a
result of international surrogacy
- 9.30 Problems
may also arise in situations when a child is born as a result of a surrogacy
arrangement in Aotearoa New Zealand to
foreign intended parents. In some of
these cases, the child may travel to the intended parents’ country of
birth where the
intended parents acquire legal parenthood without the child
being formally adopted under New Zealand law. This would leave the child
with
“limping” legal parenthood (where two countries take different
positions on the child’s legal parenthood).
- 9.31 In the
absence of an international instrument, Aotearoa New Zealand’s legal
framework needs to encourage and provide for
foreign intended parents to
formalise their legal relationship to the surrogate-born child in Aotearoa New
Zealand. Our legal parenthood
proposals are discussed in Chapter
7.
PROPOSALS FOR REFORM
- 9.32 We
think it is important that Aotearoa New Zealand continues to provide a process
for recognising New Zealand intended parents’
legal parenthood in
international surrogacy
- See,
for example, Conor O’Mahony A Review of Children’s Rights and
Best Interests in the Context of Donor-Assisted Human Reproduction and Surrogacy
in Irish
Law (Department of Children, Equality, Disability, Integration and
Youth, Ireland, December 2020) at 37–38; Rhonda Powell
“International
surrogacy and parenthood in New Zealand: crossing
geographical, legal and biological borders” (2017) 29 Child and Family
Quarterly
149 at 153; Permanent Bureau of the Hague Conference on Private
International Law Private International Law Issues Surrounding the Status of
Children,
Including Issues arising from International
Surrogacy Arrangements (Preliminary Document No 11, March 2011) at [14]; and
Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] 1 FLR 733
at [24] per Headley J.
33 Debra Wilson Understanding the
Experience and Perceptions of Surrogacy Through Empirical Research: Judges
Survey
(Te Whare Wānanga o Waitaha | University of Canterbury, May 2020) vol 2
at 14.
arrangements.34 This will
promote the best interests of the child by ensuring their rights to identity,
nationality, family life, health, and freedom
from discrimination are protected.
Simply prohibiting New Zealanders from entering international surrogacy
arrangements is not a
viable option.35
- 9.33 However, we
do not think that New Zealand law should automatically recognise the legal
parent-child relationship established
in the surrogate-born child’s
country of birth. In the absence of an international instrument that sets
minimum requirements
for the regulation of surrogacy and recognition of legal
parenthood, Aotearoa New Zealand cannot be certain that automatically
recognising legal parenthood established outside its borders will be in
the child’s best interests. In these circumstances,
automatic recognition
would be unlikely to fulfil Aotearoa New Zealand’s obligations under
international human rights
law, including to take appropriate measures to
protect children from abuse and exploitation.36
- 9.34 We are also
mindful of international best practice. The Verona Principles, published in
2021, state that, in international surrogacy
arrangements where at least one
state does not permit the specific arrangement, a best interests of the child
determination should
be conducted additionally by a court or other competent
authority of the state where the intended parents intend to reside with the
child.37 This is relevant
because international surrogacy arrangements are typically commercial in nature,
and commercial surrogacy is prohibited
in Aotearoa New Zealand.
- 9.35 For these
reasons, we do not think either a prohibitive or an automatic recognition
approach would be appropriate. As the United
Nations Special Rapporteur has
observed, international surrogacy “should neither be automatically
rejected nor accepted, the
only valid consideration being the best interests of
the child”.38
- 9.36 Below we
consider options for reform that may address some of the criticisms with the
current approach.
- Consistent
with International Social Service Principles for the protection of the rights
of the child born through surrogacy (Verona principles) (Geneva, 2021) at
[10.3].
- As
noted in Chapter 1, attempts in other countries, including Australia, to
prohibit citizens from entering international commercial
surrogacy arrangements
have failed to stop the practice. A blanket prohibition is also regarded as
contrary to international
human rights law because it precludes the
possibility of assessing whether recognition of the legal parent-child
relationship between
intended parents and surrogate-born children is in the
child’s best interests: Conor O’Mahony A Review of
Children’s Rights and Best Interests in the Context of Donor-Assisted
Human Reproduction and Surrogacy in Irish
Law (Department of Children,
Equality, Disability, Integration and Youth, Ireland, December 2020) at
10.
36 See discussion in
Chapter 3.
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [6.6] and [10.8];
and Maud de Boer-Buquicchio Report of the Special Rapporteur on the sale and
sexual exploitation of children, including child prostitution, child pornography
and other child sexual abuse material UN Doc A/HRC/37/60 (15 January 2018)
at [70].
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including child prostitution, child pornography
and
other child sexual abuse material UN Doc A/74/162 (15 July 2019) at
[91].
Providing
for international surrogacy under Pathway 2 (Family Court determination of legal
parenthood)
- 9.37 In Chapter
7, we propose two alternative pathways to establish legal parenthood in a
domestic surrogacy arrangement:
(a) Pathway 1: The intended parents
are the legal parents of the surrogate-born child by operation of law provided
the surrogacy
arrangement was approved by ECART and, after the child is born,
the surrogate confirms her consent to relinquish legal parenthood.
(b) Pathway 2: Whenever Pathway 1 does not apply, the surrogate is the legal
parent at birth and an application can be made to the
Family Court for a
post-birth order determining the intended parents are the legal parents of the
surrogate-born child.
- 9.38 In the
context of international surrogacy, we do not think Pathway 1 is appropriate.
ECART approval should only be available
in relation to domestic surrogacy
arrangements, given the practical difficulties that would arise in attempting to
apply the requirements
of the ECART process (such as joint counselling) to
international surrogacy arrangements and in seeking to impose, monitor and
enforce
any requirement to obtain ECART approval on intended parents pursuing
surrogacy overseas.39
- 9.39 We propose
that Pathway 2 should be available in international surrogacy arrangements. This
would replace the need for intended
parents to adopt their child under New
Zealand law, but it would still require them to seek a court order from the
Family Court that
confirms them as the legal parents of the surrogate-born child
under New Zealand law.
- 9.40 This would
give the Family Court the opportunity to inquire into the circumstances of the
surrogacy arrangement to ensure it
is genuine and that, consistent with
international best practice, recognising the intended parents as the
child’s legal parents
is in the best interests of the child. This approach
would also be consistent with the recent recommendations made in Ireland and
with proposals put forward by the Law Commission of England and Wales and the
Scottish Law Commission in their 2019 consultation
paper.40
- 9.41 The effect
of a court determination under Pathway 2 should be the same as an adoption so
that the child is entitled to New Zealand
citizenship by birth and a New Zealand
birth certificate and passport. This would respect the child’s right not
to be discriminated
against on the basis of the child’s birth
circumstances, compared to children born in Aotearoa New Zealand.
Timing of an application under Pathway 2
- 9.42 In
Chapter 7, we propose that Pathway 2 should be a post-birth process. An
additional reason for favouring a post-birth process
in the context of
international surrogacy is that sometimes the child’s country of birth
will not recognise the intended parents
as the legal
- A
similar conclusion was reached in Law Commission of England and Wales and
Scottish Law Commission Building families through surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at [16.87].
- Conor
O’Mahony A Review of Children’s Rights and Best Interests in the
Context of Donor-Assisted Human Reproduction and Surrogacy in Irish
Law
(Department of Children, Equality, Disability, Integration and Youth,
Ireland, December 2020) at 37; and Law Commission of England
and Wales and
Scottish Law Commission Building families through surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at
[16.89].
parents of the child until after the child is born. We think it is preferable
that the Family Court’s consideration of an application
under Pathway 2
follows any steps taken to secure legal parenthood in the child’s country
of birth. This will ensure the Family
Court has all the relevant information
before it when making an order.
- 9.43 There are
two different ways Pathway 2 could operate in international surrogacy
arrangements:
- Option A:
Intended parents apply to the Family Court for an order determining that they
are the child’s legal parents before
they return with the child to
Aotearoa New Zealand. Option A is similar to the approach under the Covid-19
Protocol. Once an order
is made, the intended parents would be able to apply for
a New Zealand passport for the child and travel to Aotearoa New Zealand.
No
further steps would be required to establish legal parenthood.
- Option B:
Intended parents return to Aotearoa New Zealand with the child and then apply to
the Family Court for an order determining
that they are the child’s legal
parents. Option B is similar to the pre-Covid-19 Protocol approach. To
facilitate the child’s
entry to Aotearoa New Zealand, a clearer and more
efficient immigration pathway could be developed. For example, a specific
temporary
visa category and immigration instructions could be developed under
the Immigration Act 2009 to provide for surrogate-born children
to enter
Aotearoa New Zealand on satisfaction of certain criteria.41 This would avoid the need for
the Minister of Immigration to consider each application on a case-by-case
basis.42
- 9.44 Both
options have advantages and disadvantages. The practical advantages of Option A
are clear, as has been observed with the
Covid-19 Protocol. There would be no
need to arrange a passport in the child’s country of birth (or a
certificate of identity
if that is required) and no requirement to apply to the
Minister of Immigration for a temporary visa. No further administrative or
legal
steps would be required once the intended parents and the surrogate-born child
return to Aotearoa New Zealand. This may promote
the child’s best
interests by reducing the risk of statelessness and of temporary separation of
the child from the intended
parents pending travel documentation being arranged.
In addition, Option A may minimise the concern, identified above, that the
outcome
of the court’s determination is a foregone conclusion once
intended parents arrive in Aotearoa New Zealand with the child.43
- 9.45 However,
Option A also has several disadvantages. Because the order would be made before
the child travels to Aotearoa New Zealand,
there would be no ability for a
social worker to meet with the intended parents and the child in person before
reporting to the Family
Court (see Chapter 7 for a discussion of the social
worker’s role under Pathway 2). This disadvantage could, however, be
mitigated by the additional options for reform, discussed below. Another
potential disadvantage of Option A is that it may impose
a
- Immigration
instructions set out immigration policy and are applied by immigration officers
when considering visa applications.
- A
similar proposal is being considered in Law Commission of England and Wales and
Scottish Law Commission Building families through surrogacy: a new law
– A joint consultation paper (CP244/DP167, 2019) at [16.70].
- A
similar view was expressed in Conor O’Mahony A Review of
Children’s Rights and Best Interests in the Context of Donor-Assisted
Human Reproduction and Surrogacy in Irish
Law (Department of Children,
Equality, Disability, Integration and Youth, Ireland, December 2020) at
38.
degree of administrative pressure on the Family Court. A delay in hearing an
application while the child remains overseas may cause
periods of separation
between the intended parents and the child. However, fast tracking applications
might result in intended parents
in international surrogacy arrangements
having better access to the Family Court than intended parents in domestic
surrogacy arrangements.
This concern is mitigated by Pathway 1, which is only
available in relation to domestic surrogacy arrangements and provides a
pathway
to legal parenthood that does not involve the Family Court.
- 9.46 The
advantage of Option B is that it would enable the Family Court to make a
decision with all parties present in person. A social
worker would be able to
visit the child in the care of the intended parents before they report to the
court. The Family Court would
not be under pressure to make an order because the
child’s entry to Aotearoa New Zealand does not depend on it.
- 9.47 However,
the clear disadvantage of Option B is that it would require the intended parents
to follow additional steps. A passport
would need to be obtained in the
child’s country of birth (if possible) and a visa obtained to enable the
child to travel to
Aotearoa New Zealand. While the visa process could be
streamlined, this would not resolve all the cross- border issues that arise
while the child has no legal relationship with the intended parents. Further,
streamlining the visa process may not be considered
appropriate if it reduces
the government’s oversight of international surrogacy arrangements at the
border. As noted above,
there is a concern that, once a child enters Aotearoa
New Zealand and is in the care of the intended parents, the outcome of Pathway
2
may be a foregone conclusion. This might favour a more robust exercise of
oversight at the border, with discretion remaining with
the Minister of
Immigration.
No change proposed to citizenship law
- 9.48 We
do not favour changing citizenship law to enable surrogate-born children to be
recognised as New Zealand citizens from birth
if one of their genetic parents is
a New Zealander. Such an approach would mean that there would be little
incentive for intended
parents to formalise their legal relationship with their
child. This is evident in Australia, where a surrogate-born child is eligible
for Australian citizenship due to different definitions of “parent”
being applied in the context of citizenship laws.44 As the Australian Family Law
Council has observed:45
The
grant of citizenship by descent does not mean the intending parents are
considered legal parents in Australian law and this means
these children are
vulnerable if there is no legally recognised parent in Australia. The great
majority of intending parents do not
seek parenting orders when they return to
Australia as they generally have obtained overseas birth certificates,
citizenship, and
a passport ... This means that the great majority of children
born as a result of surrogacy arrangements overseas do not have the
legal
protection of having a legally recognised parent in Australia.
- Australian
Citizenship Act 2007 (Cth), as discussed in H v Minister for Immigration and
Citizenship [2010] FCAFC 119, (2010) 188 FCR 393 at
[128]–[130].
45 Family
Law Council Report on Parentage and the Family Law Act (Australia,
December 2013) at 121.
Additional
options for reform
- 9.49 In addition
to our proposal that Pathway 2 be available in international surrogacy
arrangements, we have identified some additional
options for reform, which we
discuss below.
Should some overseas judicial decisions be recognised?
- 9.50 We
are interested in views on whether New Zealand law should recognise some
overseas judicial decisions establishing legal parenthood
of surrogate-born
children. This could mean that, if intended parents entered a surrogacy
arrangement in a particular country, the
legal process followed in that country
would be recognised under New Zealand law and the intended parents would not
need to seek
a court determination under Pathway 2.46
- 9.51 This could
provide for the recognition of legal parenthood if it is established in a
country that has a similar regulatory
framework to Aotearoa New Zealand. This
could include Australia, the United Kingdom and Canada. This would reduce
administration
and might incentivise intended parents who are considering
international surrogacy to choose destinations that have similar regulatory
frameworks.
- 9.52 However,
establishing a framework for recognising some overseas judicial decisions would
likely be of limited use in practice.
Most international surrogacy arrangements
entered by New Zealanders are based in countries that would be unlikely to
qualify under
such a framework because the arrangements are commercial in
nature. In addition, a recognition regime would not grant the child the
same
entitlements as we envisage under Pathway 2. As is the case with overseas
adoptions, discussed above, under a recognition regime,
provided at least one
intended parent is a New Zealand citizen by birth, the child would be entitled
to New Zealand citizenship by
descent and a New Zealand passport. They would not
be entitled to a New Zealand birth certificate and would be unable to pass New
Zealand citizenship on to any children born outside Aotearoa New Zealand.
Finally, it might not be appropriate to establish such
a framework given that
this is the focus of ongoing work by the Hague Conference to establish a
recognition regime in international
surrogacy arrangements, discussed
below.
Clearer role for Oranga Tamariki?
- 9.53 We
are interested in your views on whether Oranga Tamariki should have a clearer
role in international surrogacy arrangements
to reduce the risks associated with
international surrogacy.
- 9.54 One option
is that Oranga Tamariki could be given an educative role early in the
international surrogacy process. For example,
Oranga Tamariki could run
educational initiatives that give intended parents contemplating international
surrogacy information about
a child’s rights and how these might be
impacted in an international surrogacy arrangement. If intended parents are
aware,
for example, of the importance of preserving
- A
similar option is being considered by the Law Commission of England and Wales
and the Scottish Law Commission: Law Commission of
England and Wales and
Scottish Law Commission Building families through surrogacy: a new
law
– A joint consultation paper (CP244/DP167,
2019) at [16.91]–[16.92].
information about donated gametes for their child, they may be more likely to
try to use a gamete donor who provides identifying
information about
themselves.
- 9.55 Another
option could be to bring forward Oranga Tamariki’s assessment role in
international surrogacy arrangements. In
Chapter 7, we propose that the Family
Court should continue to require a social worker’s report under Pathway 2
but that the
social worker assessment should be tailored to the specific
circumstances of surrogacy. Currently, this assessment is undertaken
once a
viable pregnancy is established. There could be benefit in bringing forward this
assessment to better align with the ECART
approval process so that it is
undertaken prior to intended parents entering an international surrogacy
arrangement. This would enable
Oranga Tamariki to identify any possible issues
and work through these with the intended parents before a child is
conceived.
- 9.56 We
acknowledge there may be a concern that these options may be seen as
facilitating or endorsing international surrogacy. In
our view, international
surrogacy is a global reality and requires a pragmatic response to promote the
best interests of the child.
New Zealanders are already entering surrogacy
arrangements offshore. We think that the best interests of the child could be
promoted
by early involvement by Oranga Tamariki. It could also provide an
opportunity to promote the benefits of domestic surrogacy arrangements,
which
would avoid the cross-border issues identified
above.
Supporting
the work of the Hague Conference
- 9.57 As noted
above, the risks associated with international surrogacy cannot be fully
addressed by individual state action. Given
the disparity of regulation of
surrogacy worldwide, there are doubts as to the ability of an international
instrument to develop
a uniform approach.47 It is, however, expected that
consensus on a process for recognising legal parenthood in international
surrogacy arrangements can
be achieved.48 This is a focus of the
Experts’ Group convened by the Hague Conference in 2015.
- 9.58 The
Experts’ Group is considering how a protocol could provide for the
recognition of legal parenthood established in the
surrogate-born child’s
country of birth. 49 Most
members of the Experts’ Group have affirmed the importance of having
minimum standards or safeguards specifically for international
surrogacy
arrangements to protect the rights and welfare of the parties involved.50 What these safeguards are and
whether
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including child prostitution, child pornography
and
other child sexual abuse material UN Doc A/HRC/37/60 (15 January 2018) at
[20]–[21]; and Law Commission of England and Wales and Scottish Law
Commission Building families through surrogacy: a new law – A joint
consultation paper (CP244/DP167, 2019) at [4.92]–[4.99].
- Margaret
Casey “Creating families and establishing parentage when there is a
disconnect between Assisted Reproductive Technologies
and the Legal System: A
New Zealand perspective of a global problem” (2017) 9 NZFLJ 51 at
54.
- Permanent
Bureau of the Hague Conference on Private International Law Report of the
Experts’ Group on the Parentage / Surrogacy Project (meeting of 29 January
– 1 February 2019) (Preliminary Document No 2B, March 2019) at
[12]–[15] and [22]–[24].
- Permanent
Bureau of the Hague Conference on Private International Law Report of the
Experts’ Group on the Parentage / Surrogacy Project (meeting of 29 January
– 1 February 2019) (Preliminary Document No 2B, March 2019) at
[17].
they should be conditions for recognition or grounds
for non-recognition are still being considered.51
- 9.59 Such a
protocol would resolve some of the issues we have identified above, as the New
Zealand Government would have confidence
that adequate safeguards are in place
in the child’s country of birth and that recognising the legal
parent-child relationship
between the intended parents and the surrogate-born
child established in that country is in the child’s best interests.
- 9.60 For these
reasons, we think the Government should continue to support the work of the
Hague Conference on private international
law issues in relation to legal
parenthood, including issues arising from international surrogacy
arrangements.
QUESTIONS
|
|
Q27
|
Do you agree with the issues we have identified with international
surrogacy? Are
|
there other issues we should consider?
|
Q28
|
Do you agree with our proposal that Pathway 2 (Family Court determination
of
|
legal parenthood) should be available to New Zealand intended parents in
international surrogacy arrangements?
|
Q29
|
Do you prefer Option A or Option B in relation to the timing of
applications under
|
Pathway 2 in international surrogacy arrangements, or is there another
option we should consider?
|
Q30
|
Do you think Aotearoa New Zealand should recognise a determination of
legal
|
parenthood made in an overseas jurisdiction if that country has similar
regulation of surrogacy arrangements?
|
Q31
|
Do you think that Oranga Tamariki should have a clearer role, such as
running
|
educational initiatives for people contemplating international surrogacy or
involving social workers earlier in the international
surrogacy process?
|
- Permanent
Bureau of the Hague Conference on Private International Law Report of the
Experts’ Group on the Parentage / Surrogacy Project (meeting of 29 January
– 1 February 2019) (Preliminary Document No 2B, March 2019) at
[18]–[20].
CHAPTER 10
Access
to surrogacy
IN THIS CHAPTER, WE CONSIDER:
- availability of
information and public awareness;
- advertising for
surrogates;
- barriers to
connecting intended parents and potential surrogates;
- availability of
experienced lawyers;
- public funding
for surrogacy-related fertility treatment; and
- availability of
donor gametes in Aotearoa New Zealand.
INTRODUCTION
- 10.1 In
this chapter, we address a range of issues that affect access to surrogacy in
Aotearoa New Zealand. Addressing these issues
may help to encourage New
Zealanders who are considering surrogacy to enter surrogacy arrangements in
Aotearoa New Zealand rather
than offshore, which is a guiding principle of our
review.
- 10.2 We are
interested in your views on each of these issues, although we note public
funding and the availability of donor ova and
sperm are wider issues that affect
fertility treatment in general. This means the ability to address these issues
in our review of
surrogacy is limited.
AVAILABILITY OF INFORMATION AND PUBLIC AWARENESS
Issues
- 10.3 There is no
single, public source of official information on the surrogacy process in
Aotearoa New Zealand. Instead, information
is fragmented across different
government websites,1 often
relates to a specific aspect of the surrogacy process, lacks detail and is not
easy to find. More is found on the websites of
private organisations, including
fertility
- Including
websites for Oranga Tamariki | Ministry for Children, Immigration New Zealand,
the Ethics Committee on Assisted Reproductive
Technology and the Advisory
Committee on Assisted Reproductive Technology.
clinics and Fertility New Zealand, a registered charity dedicated to providing
information, support and advocacy to people experiencing
fertility
issues.
- 10.4 The limited
availability of information on the surrogacy process, particularly from an
official government source, is concerning.2 This was raised as an issue by
many people we spoke with during initial consultation who told us the lack of
information generated
confusion and misunderstanding as to what surrogacy
involved and how it is regulated in Aotearoa New Zealand. We heard an example
of
a woman offering to be a surrogate without realising that she could not be paid
for doing so and of intended parents resorting
to private online forums, some
based overseas, when they could not access information elsewhere.
- 10.5 Some also
thought there should be more information available to the general public, to
increase public awareness and understanding
of surrogacy.
Options
for reform
- 10.6 Improving
the availability of information on surrogacy would be consistent with
international best practice.3
It would reduce the risk of intended parents and surrogates relying on
inaccurate or incomplete information. It would also help to
raise public
awareness of surrogacy and reduce barriers for women considering
becoming surrogates. We think the Government
is best placed to address this
issue, as information provided by a government agency is most likely to be
considered trustworthy
and independent.
- 10.7 We think
the Government should consider ways of providing comprehensive, clear and
readily available information on surrogacy
and raising public awareness. This
could include:
(a) producing a comprehensive information guide on
surrogacy law and practice;4
(b) establishing and maintaining a website to act as a centralised, official
and up-to-date source of information for New Zealanders
considering having a
child by surrogacy or becoming a surrogate;5 and
(c) a one-off public information campaign, which could be timed to coincide
with the implementation of the recommendations we make
in our report if accepted
by the Government.
- 10.8 We are
interested in your views on which government agency is best suited to provide
this information and raise public awareness.
Possible options include the
Ministry of
- This
is also a concern in comparable jurisdictions. See, for example, South
Australian Law Reform Institute Surrogacy: A Legislative Framework –
A Review of Part 2B of the Family Relationships Act 1975 (SA) (Report 12,
2018) at [13.1.1] and [13.1.4].
- International
Social Service Principles for the protection of the rights of the child born
through surrogacy (Verona principles) (Geneva, 2021) at [18.1].
- Similar
to the guide produced in England and Wales: Department of Health and Social Care
The Surrogacy Pathway: Surrogacy and the legal process for intended parents
and surrogates in England and Wales (United Kingdom, November 2019). The
Department of Health and Social Care has also published Care in Surrogacy:
Guidance for the care of surrogates and intended parents in surrogate births in
England and Wales (November 2019), which provides guidance for all
healthcare professionals involved in the care of surrogates and intended parents
in surrogate births.
5 See,
for example, the information provided in Victoria: Victoria Assisted
Reproductive Treatment Authority “Surrogacy”
<www.varta.org.au>.
Health, Oranga Tamariki or one of the Ministerial Committees that have a role in
the regulation of surrogacy, namely the Ethics Committee
on Assisted
Reproductive Technology (ECART) or the Advisory Committee on Assisted
Reproductive Technology (ACART).
ADVERTISING FOR SURROGATES
- 10.9 During
initial consultation, intended parents regularly expressed frustration with the
prohibition on advertising relating to
surrogacy arrangements in section 15 of
the Human Assisted Reproductive Technology Act 2004 (HART Act). The prohibition
prohibits
advertising if it involves payment beyond what is permitted by section
14. This means that people can advertise in relation to a
surrogacy arrangement
except where:
(a) the advertisement invites people to participate,
or to enquire about opportunities for participating, in a surrogacy arrangement
that would breach the prohibition on the exchange of valuable consideration;
or
(b) the advertiser is paid for the advertisement, which could itself breach
the prohibition on the exchange of valuable consideration
“for arranging
any other person’s participation in a surrogacy arrangement”.
- 10.10 We think
prohibiting advertising that includes an offer to exchange valuable
consideration contrary to the HART Act is appropriate
and should remain.
However, the prohibition on paying for advertisements that would otherwise
comply with the HART Act appears problematic.
It creates a distinction based on
whether an advertisement is free or paid, which is becoming increasingly
irrelevant in the age
of social media and acts as a barrier to intended parents
and potential surrogates connecting.
Options for reform
- 10.11 Allowing
advertisers to be paid for advertisements in relation to lawful surrogacy
arrangements would broaden the ways that
intended parents and potential
surrogates can reach out to each other. This would be consistent with the
approach taken in some
comparable jurisdictions where advertising is only
prohibited if the advertisement includes an offer of payment to a person willing
to participate in a surrogacy arrangement but payment for the advertisement is
allowed.6 That said, some
comparable jurisdictions are more stringent and prohibit advertising in relation
to surrogacy altogether7 out
of a desire to avoid any commercialisation of surrogacy and to keep
surrogacy arrangements between family networks and close
friends.8
- 10.12 We are
interested in your views on this matter and whether you think people should
be able to pay an advertiser for advertising
in relation to a surrogacy
arrangement.
- See
Assisted Human Reproduction Act SC 2004 c 2, s 6(1); Surrogacy Act 2008 (WA), s
10; and Surrogacy Act 2019 (SA), s 26(1).
- See
Assisted Reproductive Treatment Act 2008 (Vic), s 45(1); Parentage Act 2004
(ACT), s 43; and Surrogacy Act 2010 (Qld), s
55.
8 Investigation into
Altruistic Surrogacy Committee Report (Queensland Parliament, Brisbane,
October 2008) at 37.
BARRIERS TO CONNECTING INTENDED PARENTS AND POTENTIAL
SURROGATES
Issues
- 10.13 It can be
difficult for intended parents to find someone who is willing to act as a
surrogate in Aotearoa New Zealand. Several
intended parents we spoke with
during initial consultation said that connecting with potential surrogates was
one of their biggest
challenges and difficulties in finding potential surrogates
in Aotearoa New Zealand was a common reason for pursuing surrogacy
offshore.
- 10.14 Currently,
it is an offence to give or receive valuable consideration for arranging another
person’s participation in
a surrogacy arrangement, 9 which means that private
intermediaries do not operate in Aotearoa New Zealand. While some fertility
clinics maintain lists of ovum
and sperm donors, they do not maintain lists of
women willing to act as a surrogate. Intended parents are instead expected to
find
a surrogate themselves.
- 10.15 In
practice, most women who act as surrogates are family members or close friends
of the intended parent(s). However, increasing
numbers of intended parents and
surrogates are meeting online through private forums such as NZ-Surrogacy.com,
Fertility New Zealand
and Facebook groups. In January 2021, a New Zealand
website, lovemakes.family, was launched that aims to bring people together to
make a family through surrogacy and gamete donation. These forums provide a
means for intended parents and potential surrogates to
connect but do not
actively facilitate or “match” intended parents with a potential
surrogate.
Options for reform
- 10.16 Many of
the proposals we have suggested throughout this Issues Paper seek to reduce
barriers for women considering becoming
a surrogate in Aotearoa New Zealand. In
Chapter 6, we propose allowing surrogates to be reimbursed for reasonable
expenses they incur
in relation to a surrogacy arrangement and ensuring they are
entitled to a period of paid leave on the same basis as paid parental
leave. In
Chapter 7, we propose changes to legal parenthood laws to provide greater
clarity and certainty about the rights and obligations
of surrogates and
intended parents. In this chapter, we suggest raising public awareness and
providing trustworthy and independent
information about surrogacy, which could
encourage some women to consider acting as surrogates, as well as relaxing the
restriction
on paid advertising in relation to lawful surrogacy
arrangements.
- 10.17 There are
additional steps that could be taken to reduce barriers to intended parents
connecting with potential surrogates in
Aotearoa New Zealand. Two options
warrant specific consideration:
(a) Option 1: Establishing a
surrogacy register to enable women who are interested in becoming a surrogate to
register their interest
and be matched with intended parents.
(b) Option 2: Permit private intermediaries to operate in Aotearoa New
Zealand on a non-profit and regulated basis.
9 Human Assisted
Reproductive Technology Act 2004, s 14.
Option 1: Establish a surrogacy register
- 10.18 A
surrogacy register has been considered in Australia10 and suggested in Aotearoa New
Zealand in a proposed Member’s Bill.11
- 10.19 Under this
option, a surrogacy register would be administered by a government- appointed
registrar, who would be responsible
for:
(a) registering potential
surrogates and intended parents if they meet the requirements for registration,
which might include criminal
background checks and some form of medical and
psychological assessment;12
and
(b) matching potential surrogates and intended parents who would then decide
whether they want to enter a surrogacy arrangement.
- 10.20 A
surrogacy register could make it easier for intended parents to connect with
potential surrogates. It could provide a clear
pathway to follow for women
considering becoming a surrogate, and for intended parents to find a surrogate.
It might also provide
a safer environment for intended parents and surrogates to
meet than existing online forums. Finally, by facilitating connections
with
women who are considering becoming a surrogate, a register could help reduce the
risk of family members or close friends of
intended parents being pressured or
coerced into becoming surrogates. This is a concern we identify in Chapter
3.
- 10.21 In
Australia, no state or territory has established a surrogacy register, despite
general support for the concept.13
In South Australia, legislation was introduced to establish a surrogacy
register in 2015,14 but that
legislation was repealed before the register was set up, on the recommendation
of the South Australian Law Reform Institute
(SALRI).15 SALRI noted the
Government’s “significant and ongoing concerns” about the
establishment of the register and the
view that “strongly emerged”
in consultation was that a register,
- South
Australian Law Reform Institute Surrogacy: A Legislative Framework – A
Review of Part 2B of the Family Relationships Act 1975 (SA) (Report 12,
2018) at [10.4]; and House of Representatives Standing Committee on Social
Policy and Legal Affairs Surrogacy Matters: Inquiry into the regulatory and
legislative aspects of international and domestic surrogacy arrangements
(Parliament of the Commonwealth of Australia, April 2016) at
[1.54]–[1.57].
- Improving
Arrangements for Surrogacy Bill 2021 (undrawn Member’s Bill, Tāmati
Coffey MP), cl 9. A register of surrogates
has also been proposed for Aotearoa
New Zealand in Ruth Walker and Liezl van Zyl Towards a Professional Model of
Surrogate Motherhood (Palgrave Macmillan, London, 2017) at 18,
138–139.
- The
need for some form of assessment of surrogates and intended parents prior to
registration on the surrogacy register was identified
in House of
Representatives Standing Committee on Social Policy and Legal Affairs
Surrogacy Matters: Inquiry into the regulatory and legislative aspects of
international and domestic surrogacy arrangements (Parliament of the
Commonwealth of Australia, April 2016) at [1.57]; and in Law Society of South
Australia’s submission to South
Australian Attorney-General’s
Department State Framework for Altruistic Surrogacy (25 May 2017) at
[29]– [35], as cited in South Australian Law Reform Institute
Surrogacy: A Legislative Framework – A Review of Part 2B of the
Family Relationships Act 1975 (SA) (Report 12, 2018) at [10.4.4], n
380.
- See,
for example, House of Representatives Standing Committee on Social Policy and
Legal Affairs Surrogacy Matters: Inquiry into the regulatory and legislative
aspects of international and domestic surrogacy arrangements (Parliament of
the Commonwealth of Australia, April 2016) at [1.57]; and Australian Human
Rights Commission Submission to the House of Representatives Standing
Committee on Social Policy and Legal Affairs: Inquiry into the Regulatory and
Legislative Aspects of Surrogacy Arrangements (17 February 2016),
R3.
14 Under the Family
Relationships (Surrogacy) Amendment Act 2015 (SA).
- South
Australian Law Reform Institute Surrogacy: A Legislative Framework – A
Review of Part 2B of the Family Relationships Act 1975 (SA) (Report 12,
2018), R14.
while well intentioned, raised privacy, policy and practical concerns and was
inappropriate.16
- 10.22 Having
considered the concerns raised in SALRI’s review and the current
regulatory environment in Aotearoa New Zealand,
we think there are several
concerns with establishing a surrogacy register:
(a) First,
providing a matching service may be an inappropriate extension of the
state’s role. Surrogacy arrangements are fundamentally
private
arrangements. In Chapter 3, we explain a guiding principle of our review is that
surrogacy law should respect the autonomy
of consenting adults in their private
lives but that this must be balanced against other principles, including the
paramountcy of
children’s best interests and the need for sufficient
regulatory safeguards to protect the parties from exploitation. Our view
is that
the proper role of the state is to provide a safe and effective regulatory
framework for surrogacy arrangements. Actively
facilitating individual surrogacy
arrangements extends significantly beyond this role. It also creates a risk that
the surrogacy
register is seen as a de facto waiting list for intended parents
to be matched with a surrogate, which may change intended parents’
expectations and create a more transactional rather than relationship-based
surrogacy model.17
(b) Second, establishing a surrogacy register could duplicate existing
regulatory safeguards. If the surrogacy register is to provide
a safer
environment for potential surrogates and intended parents to meet than the
current options, there would need to be some assessment
of potential surrogates
and intended parents as part of the registration process. This would duplicate
the assessment that is already
undertaken as part of the ECART approval process
(discussed in Chapter 5).
(c) Third, a surrogacy register may not be workable or effective in practice.
As noted above, intended parents and potential surrogates
are already
connecting through free online forums. We question whether they would prefer
signing up to a state-run register,
especially if that involves a more
complex application process, some form of assessment and, in the case of
intended parents,
potentially the payment of a fee. More problematic is the fact
that, by signing up to the register, potential surrogates would lose
control
over who they decide to connect with in the first instance. This was
highlighted as a concern in SALRI’s review,
with one lawyer with extensive
experience in surrogacy law observing that, while there is a need for surrogates
and intended parents
to be able to get in touch, “no surrogate mother
would ever join a State Register”.18
- 10.23 For these
reasons, our preliminary view is that a surrogacy register should not be
established in Aotearoa New Zealand.
- South
Australian Law Reform Institute Surrogacy: A Legislative Framework – A
Review of Part 2B of the Family Relationships Act 1975 (SA) (Report 12,
2018) at 111.
- Similar
concerns were identified in South Australian Law Reform Institute Surrogacy:
A Legislative Framework – A Review of Part 2B of the Family Relationships
Act 1975 (SA) (Report 12, 2018) at 111–112.
- South
Australian Law Reform Institute Surrogacy: A Legislative Framework – A
Review of Part 2B of the Family Relationships Act 1975 (SA) (Report 12,
2018) at 111.
Option 2: Permit private intermediaries to operate in Aotearoa
New Zealand
- 10.24 Another
option is to permit private intermediaries to operate in Aotearoa New Zealand.
This could give intended parents wider
options to connect with potential
surrogates than simply relying on online forums or family and friend
networks.
- 10.25 As
discussed in Chapter 6, significant concerns have been expressed about the
operation of intermediaries in surrogacy
arrangements, especially for-profit
intermediaries that operate internationally. The United Nations (UN) Special
Rapporteur has
observed that such intermediaries “often receive the
largest profits and create large-scale national and transnational surrogacy
markets and networks”. 19
She has condemned for-profit intermediaries as being “the real
threat of exploitation and commodification of children, and
potentially of
surrogates”, as they are motivated by “the successful
completion of the surrogacy agreement with
little to no regard for the rights
of those involved”.20
These concerns exist even in “altruistic” surrogacy models if
for-profit intermediaries are permitted to operate.21 Given these concerns, both
the UN Special Rapporteur and the Verona Principles call for appropriate
safeguards and regulation of intermediaries.22
- 10.26 In the
United Kingdom, private intermediaries can operate but only on a non-profit
basis.23 This means that intermediaries
must be “non-profit making bod[ies]” 24 and must not charge fees that
exceed their costs. 25 This
may alleviate concerns regarding intermediaries. However, it may not reduce the
need for regulation. In 2019, the Law Commission
of England and Wales and the
Scottish Law Commission proposed that non- profit surrogacy intermediaries
should be regulated, to create
consistent standards and promote best practice.26 As the Commissions
observed:27
... the fact
that an organisation is non-profit is ... not a guarantee that it will adopt
efficient and ethical practices; for example,
provided an organisation is
non-profit it can pay its staff whatever salary it wishes.
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including child prostitution, child pornography
and
other child sexual abuse material UN Doc A/HRC/37/60 (15 January 2018) at
[40].
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including child prostitution, child pornography
and
other child sexual abuse material UN Doc A/74/162 (15 July 2019) at
[78].
21 Law Commission of
England and Wales and Scottish Law Commission Building families through
surrogacy: a new law
- Maud
de Boer-Buquicchio Report of the Special Rapporteur on the sale and sexual
exploitation of children, including child prostitution, child pornography
and
other child sexual abuse material UN Doc A/74/162 (15 July 2019) at [79];
and International Social Service Principles for the protection of the rights
of the child born through surrogacy (Verona principles) (Geneva, 2021) at
[16.1].
23 Surrogacy
Arrangements Act 1985 (UK), s 2(2A).
24 Surrogacy Arrangements Act 1985
(UK), s 1(7A).
25 Surrogacy Arrangements Act 1985
(UK), s 2(2C).
26 Law Commission of England and Wales
and Scottish Law Commission Building families through surrogacy: a new
law
- – A
joint consultation paper (CP244/DP167, 2019) at
[9.44].
27 Law Commission of
England and Wales and Scottish Law Commission Building families through
surrogacy: a new law
- – A
joint consultation paper (CP244/DP167, 2019) at
[9.67].
- 10.27 A model
like that in the UK could be considered for Aotearoa New Zealand, particularly
if New Zealanders’ use of surrogacy
continues to grow and other proposals
in this Issues Paper to reduce the barriers to intended parents connecting with
potential surrogates
in Aotearoa New Zealand are not considered to be
sufficient.
- 10.28 However,
given the concerns regarding intermediaries and that international best practice
calls for their regulation, we think
that there would need to be a strong case
for changing the current law and permitting intermediaries to charge a fee, even
on a non-profit
basis. We are also mindful that this could increase the cost of
surrogacy for intended parents, with some non-profit organisations
in the UK
reportedly charging more than £15,000 for their services.28
- 10.29 At this
stage, we are not convinced that the case for private intermediaries is a
compelling one. However, we note that demand
for surrogacy has increased in
Aotearoa New Zealand and will continue to increase. Accordingly, we are
interested in hearing
your views on whether private intermediaries should be
allowed to operate in Aotearoa New Zealand on a non-profit and regulated
basis.
AVAILABILITY OF EXPERIENCED LAWYERS
Issues
- 10.30 Currently,
intended parents and surrogates in domestic gestational surrogacy arrangements
must obtain independent legal advice
as part of the ECART application process.29 Intended parents will also
typically require a lawyer for the adoption process, including intended parents
in traditional surrogacy
arrangements that do not go through the ECART process
as well as intended parents who enter international surrogacy arrangements.
- 10.31 Our
initial research and consultation revealed concerns about the limited number of
lawyers with experience advising on surrogacy
arrangements. Surrogacy law is a
specialist area, and finding a lawyer with the necessary experience and
understanding was identified
as a concern by several intended parents,
surrogates and other stakeholders we spoke with. One intended parent told us
“we
feel like we’ve paid lawyers to come up to speed on the law
– it’s like paying for their study”. A surrogate
and her
partner told us that they had to use a lawyer with no prior surrogacy experience
because the only lawyer with surrogacy expertise
in their region was not
available. They ended up relying more on information the intended parents had
received from their own lawyer
who was a surrogacy expert.
- 10.32 The
shortage of experienced lawyers is an obvious issue given the complex legal
issues that can arise in any surrogacy arrangement
and particularly given the
uncertainty resulting from the current law (discussed in Chapters 5-7). There is
a real risk of intended
parents and surrogates receiving poor legal advice,
which could have significant
- Melanie
Newman and Jim Reed “Surrogacy: Social media advertising plans prompt
regulator warning” BBC News (online ed, Britain, 29 January
2020).
- Advisory
Committee on Assisted Reproductive Technology Guidelines for family gamete
donation, embryo donation, the use of donated eggs with donated sperm and clinic
assisted surrogacy (September 2020) at 6.
repercussions. At the very least, inadequate legal advice has been grounds for
ECART deferring approval in some cases.30
Options for
reform
- 10.33 This is
not an issue that needs to be addressed through law reform. Instead, one way to
address this issue would be to ensure
that the provision of comprehensive
information on a centralised, official website, discussed above, includes
information for professionals
involved in surrogacy arrangements.
- 10.34 Another
way to help ensure there are more experienced lawyers is to provide greater
opportunities for professional development
in surrogacy. This could coincide
with the implementation of recommendations made as part of the
Commission’s review, if those
recommendations are accepted by the
Government, to ensure lawyers are knowledgeable about any new surrogacy
laws.
PUBLIC FUNDING FOR SURROGACY
Issues
- 10.35 During
initial consultation, many intended parents expressed concern about the
availability of public funding for surrogacy.
A common concern was that the
availability of public funding was discriminatory. One intended parent we spoke
with noted the “stark
contrast” between the availability of public
funding for male couples and everyone else. He said:
If you are
heterosexual, you can get public funding for fertility treatment. If you are a
female couple, you do not need to rely on
surrogacy or egg donation and you can
also get public funding for fertility treatment. But if you are a male couple,
you need a surrogate
and an egg donor and you cannot get public funding for
either.
- 10.36 ECART has
observed that certain ethnicities are disproportionately represented in terms of
access to assisted reproductive technology,
which it considers raises the
question about equitable access to surrogacy for different ethnicities and
gender identities.31
- 10.37 There is
no specific allocation of public funding for surrogacy-related fertility
treatment. Instead, public funding for all
fertility treatment is allocated to
District Health Boards for distribution using the Clinical Priority Assessment
Criteria (CPAC).32 The CPAC
is used to determine priority for funding using set diagnostic and social
criteria, such as biological or unexplained infertility,
the age of the woman
who is trying to conceive, her body mass index, how long a couple have been
trying to conceive and how many
children a couple
30 Discussed in Ruth
Walker and Liezl van Zyl “Surrogacy and the law: three perspectives”
(2020) 10 NZFLJ 9 at 11.
- Letter
from Ethics Committee on Assisted Reproductive Technology to Te Aka Matua o te
Ture | Law Commission regarding initial views
on surrogacy review (7 July
2021).
- National
Specialist Guidelines for Investigation of Infertility – Priority Criteria
for Access to Public Funding of Infertility
Treatment (National Health
Committee, July 1999).
already have.33 The CPAC
“is intended to benefit those who are most in need for therapy
... balanced by a system that will ensure maximum benefit”.34
- 10.38 People who
lack the sex characteristics to become pregnant (including male couples and
single men) cannot qualify under the
CPAC for surrogacy-related fertility
treatment because the diagnostic criteria focus on whether there is a biological
or “organic”
cause for infertility. Even for people who do
experience infertility (including heterosexual couples and single women), it can
be
difficult to qualify for funding.35 Public funding has not
increased to match growing demand.36 Accordingly, even when people
do qualify, the wait time for treatment can be significant.37
- 10.39 Another
concern relates to the lack of public funding available for making applications
to ECART. While ECART does not charge
an application fee, applications can only
be made by a fertility clinic, and clinics do charge intended parents for the
costs associated
with preparing the application (see discussion in Chapter 5).
Representatives from one fertility clinic we spoke with during initial
consultation highlighted that the cost of the ECART process makes surrogacy cost
prohibitive for Māori and Pacific peoples in
particular (see discussion in
Chapter 4).
Options for reform
- 10.40 The scope
of our review is limited to surrogacy, which means we are not in a position to
consider general changes to the CPAC.
We are also conscious that, without an
overall increase in public funding for fertility treatment, changes to the CPAC
to improve
peoples’ chances of qualifying for surrogacy-related fertility
treatment are unlikely to achieve meaningful reform. It is more
likely they will
simply result in longer waiting times for more people.
- 10.41 That said,
questions have been raised about the CPAC’s validity, consistency and
fairness.38 In 2019, the
President of Fertility New Zealand said “[w]e do not think that the
funding and criteria have kept pace with the
diverse ways people now build
whānau in
- National
Specialist Guidelines for Investigation of Infertility – Priority Criteria
for Access to Public Funding of Infertility
Treatment (National Health
Committee, July 1999) at 28 and 31.
- National
Specialist Guidelines for Investigation of Infertility – Priority Criteria
for Access to Public Funding of Infertility
Treatment (National Health
Committee, July 1999) at 24.
- Fertility
Associates, one of the fertility clinics operating in Aotearoa New Zealand
outlines possible scenarios where people will
qualify for funding for fertility
treatment on their website: Fertility Associates “Public funding and
eligibility”
<www.fertilityassociates.co.nz>.
Scenarios include a heterosexual couple only being eligible if they suffer from
severe
infertility, have no children and have been trying to conceive for one year
or more or have unexplained infertility and have been
trying to conceive for
five years. A single female will only be eligible (if her investigations are
normal) if she has not become
pregnant after 12 cycles of privately funded donor
insemination. People in these scenarios would also have to meet other criteria
that can be impossible or demanding, including being 39 or younger and having a
body mass index lower than 32 at the time of treatment.
- See,
for example, Wayne Gillett and Katy Crozier “Priority Criteria for Access
to Infertility Services – Is the Model
Fair and Justified?” [2000]
Otago Bioethics Report 6 at 17; and Katarina Williams “Funding lagging
behind as demand for
IVF grows” Stuff (online ed, New Zealand, 19
December 2016).
- Fertility
Plus (Auckland DHB) currently has a 9–10 month wait time for an IVF cycle.
Waitemata DHB had an average wait time
of up to 17 months for fertility
treatment from 2016–2019.
- Wayne
Gillett and Katy Crozier “Priority Criteria for Access to Infertility
Services – Is the Model Fair and Justified?”
[2000] Otago Bioethics
Report 6 at 15.
NZ”.39 In addition,
when the CPAC was implemented, it was considered to be only the start and that
further work would be required to ensure
its validity and reliability.40 ECART also indicated during
initial consultation that it sees this review as an opportunity “for a
review of funding and of
any potential discriminatory practices related to
ethnicity and gender identity”. 41 It may therefore be
appropriate for the CPAC to be reviewed to determine whether its criteria remain
appropriate for contemporary
Aotearoa New Zealand. Some criteria, such as the
body mass index requirement, may no longer be appropriate.42
- 10.42 In the
context of surrogacy, while we do not propose any options for law reform, in our
preliminary view, the Government should
review how it funds surrogacy, including
surrogacy-related fertility treatment as well as the costs associated with the
ECART process.
A review could consider whether different criteria and funding
should be allocated for surrogacy as opposed to other forms of fertility
treatment, with a specific focus on people who, because of their sex
characteristics, are unable carry a child. Public funding could
support intended
parents to enter surrogacy arrangements in Aotearoa New Zealand and make
surrogacy more accessible for all New Zealanders.
AVAILABILITY OF DONOR GAMETES IN AOTEAROA NEW ZEALAND
Issues
- 10.43 Another
general issue in fertility treatment that directly impacts on surrogacy is the
availability of donor gametes (ova and
sperm) in Aotearoa New Zealand. It is
widely acknowledged that demand for donor gametes outweighs supply and that
demand is continuing
to increase.43
The underlying reason for low availability appears to be section 13 of the
HART Act, which prohibits the exchange of valuable consideration
for human
gametes. In effect, donors in Aotearoa New Zealand cannot be compensated and
donor gametes cannot be paid for overseas
and then imported to Aotearoa New
Zealand.
- Brittany
Keogh “Publicly funded fertility treatment in NZ a postcode lottery”
Stuff (online ed, New Zealand, 22 June 2019).
- Wayne
Gillett and Katy Crozier “Priority Criteria for Access to Infertility
Services – Is the Model Fair and Justified?”
[2000] Otago Bioethics
Report 6 at 17.
- Letter
from Ethics Committee on Assisted Reproductive Technology to Te Aka Matua o te
Ture | Law Commission regarding initial views
on surrogacy review (7 July
2021).
- Questions
have been raised about whether BMI is an appropriate measure of heath,
particularly for Māori and Pacific people: see
Ross Wilson and J Haxby
Abbott “Age, period and cohort effects on body mass index in New Zealand,
1997–2038” (2018)
42 Australian and New Zealand Journal of Public
Health 396.
- In
an interview with Dr Andrew Murray, Medical Director, Fertility Associates
(Kathryn Ryan, Nine to Noon, RNZ, 30 March 2021), it
was noted that the annual
number of women seeking a sperm donor has doubled in the last four years, one
fertility clinic in Aotearoa
New Zealand had 1,000 women on their waiting list
for donated sperm in March this year, and a representative of the same fertility
clinic said:
The numbers are quite staggering. Each year, we get
about 300 women seeking donor sperm. Each year we recruit roughly 50 donors, so
that disparity is only going to get greater.
The low supply of donor sperm is also referenced in Emily Writes “The
sperm drought: Why New Zealand needs more donors”
The Spinoff (New
Zealand, 9 June 2020); and Virgina Fallon “Desperately seeking donors: New
Zealand’s chronic sperm shortage”
Stuff (online ed, New
Zealand, 21 February 2021).
- 10.44 Limited
availability of donor gametes is a key driver for New Zealanders to seek
fertility treatment offshore where donor gametes
are more readily available.44 This, in turn, is driving New
Zealanders to international surrogacy. As we note in Chapter 9, international
surrogacy often involves
the use of donor gametes and many jurisdictions still
permit anonymous donation, unlike Aotearoa New Zealand. Half of all
international
surrogacy arrangements that Oranga Tamariki is aware of over the
past five years have involved anonymous gamete donors, which raises
concerns for
the child’s identity rights (see Chapter
8).
Options for reform
- 10.45 Like
public funding, the low supply of donor gametes is a general fertility treatment
issue, the impact of which is not limited
to surrogacy. Making recommendations
for legal reform to address the problem would therefore go beyond the scope of
our review.
- 10.46 That said,
given the impact the low supply of donor gametes has on surrogacy, we think that
the Government should consider this
matter as a priority,
including:
(a) whether donors should be compensated for reasonable
expenses incurred in the process of donation; and
(b) whether the existing restrictions on importing donated gametes and
embryos into Aotearoa New Zealand should be relaxed in certain
circumstances.
- 10.47 In its
consideration of these issues, the Government should take into account the
advice on these matters given by ACART to
the Minister of Health in 2014.45
- See
Advisory Committee on Assisted Reproductive Technology Advice to the Minister
of Health on requirements for importing and exporting in vitro gametes and
embryos for human reproductive research
and human assisted reproductive
technology (March 2015) at 3.
- Advisory
Committee on Assisted Reproductive Technology Advice to the Minister of
Health on requirements for importing and exporting in vitro gametes and embryos
for human reproductive research
and human assisted reproductive technology
(March 2015).
QUESTIONS
|
|
Q32
|
Do you agree with the issues we have identified with access to surrogacy
in
|
Aotearoa New Zealand? Are there other issues we should consider?
|
Q33
|
Which option(s) to improve availability of information on and public
awareness do
|
you prefer? Are there other options we should consider?
|
Q34
|
Which government agency do you think is best suited to provide information
on
|
and raise public awareness of surrogacy?
|
Q35
|
Should advertisers be able to receive payment for publishing advertisements
in
|
relation to lawful surrogacy arrangements?
|
Q36
|
Do you think additional steps should be taken to reduce the barriers
intended
|
parents face connecting with surrogates? If so, which option do you
prefer?
|
Q37
|
What steps do you think should be taken to address concerns about the
limited
|
number of lawyers with experience advising on surrogacy arrangements?
|
Q38
|
Do you agree that the Government should conduct a review of how it
funds
|
surrogacy, with a view to making surrogacy in Aotearoa New Zealand
more
accessible for New Zealanders?
|
Q39
|
Do you agree that the Government should investigate the supply of donor
gametes
|
in Aotearoa New Zealand, including whether donors ought to be compensated
for reasonable expenses incurred and whether the restrictions
on importing
gametes and embryos into Aotearoa New Zealand should be relaxed in certain
limited circumstances?
|
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ISBN 978-0-9951291-1-5 (Online)
ISSN 1177-7877 (Online)
This title may be cited as NZLC IP47.
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