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Te Kôpû Whângai: He Arotake. Review of Surrogacy [2022] NZLCR 146

New Zealand Law Commission Reports

Te Kôpû Whângai: He Arotake. Review of Surrogacy [2022] NZLCR 146 (29 April 2022)

Last Updated: 27 May 2022

Paengawhāwhā | April 2022 Te Whanganui-a-Tara, Aotearoa Wellington, New Zealand

Pūrongo | Report 146

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 Geof Shirtcliffe — Kaikōmihana | Commissioner

The Hon Justice Christian Whata — Kaikōmihana | Commissioner

The Māori language version of this Report’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 978-0-9951291-6-0 (Print)

ISBN 978-0-9951291-5-3 (Online)

ISSN 0113-2334 (Print)

ISSN 1177-6196 (Online)

This title may be cited as NZLC R146. This title is available on the internet at the website of Te Aka Matua o te Ture | Law Commission: www.lawcom.govt.nz

Copyright © 2022 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

Tumu Whakarae | President

Amokura Kawharu

Kaikōmihana | Commissioners Helen McQueen

Geof Shirtcliffe

The Hon Justice Christian Whata

NZLC R146 — Te Kōpū Whāngai: He Arotake | Review of Surrogacy

I am pleased to submit to you the above Report under section 16 of the Law Commission Act 1985.

Nāku noa, nā

Amokura Kawharu

Tumu Whakarae | President

iii FOREWORD

FOREWORD TE AKA MATUA O TE TURE | LAW COMMISSION

Foreword

Having children is an important aspiration for many New Zealanders. For some people, surrogacy provides an opportunity to have a child when they are otherwise unable to do so.

Surrogacy requires careful regulation. Complex legal, ethical, cultural and medical issues can arise. The law needs to meet the needs and reasonable expectations of New Zealanders in a way that promotes and protects the rights and interests of surrogate-born children, surrogates and intended parents.

This review has examined surrogacy law, regulation and practice, both in the domestic context and overseas. We have taken account of recent international developments in the regulation of surrogacy as well as law reform in other countries.

A key problem is that the law does not recognise surrogacy as a process that creates a parent- child relationship between the intended parents and the surrogate-born child. Instead, intended parents must use the Adoption Act 1955, now over 65 years old and designed at a time when the modern practice of surrogacy could not have been contemplated. The prompt introduction and enactment of the Paige Harris Birth Registration Act 2022 with the unanimous support of the House illustrates the failure of the current law to meet the needs and reasonable expectations of New Zealanders.

This Report recommends a new legal framework for determining legal parenthood in surrogacy arrangements. Surrogacy should be recognised as a legitimate method of family building that is distinct from adoption. Our recommendations accommodate all forms of surrogacy arrangements as we think that this will best promote the paramountcy of children’s best interests.

Alongside a new framework for determining legal parenthood, we recommend a surrogacy birth register to preserve information for surrogate-born people about their genetic and gestational origins and whakapapa. We know from the experiences of adopted and donor-conceived people that such information is fundamental to a person’s identity and wellbeing.

Another key conclusion of our review is that the Government, as part of its kāwanatanga responsibilities under te Tiriti o Waitangi, should commission Māori-led research to enable a better understanding of tikanga Māori and surrogacy and Māori perspectives on surrogacy in practice. Surrogacy, as it is practised in contemporary Aotearoa New Zealand, raises new issues for tikanga Māori that would benefit from further examination.

We also make recommendations to improve access to surrogacy in Aotearoa New Zealand and reduce barriers to intended parents connecting with potential surrogates. While we affirm the existing prohibition on commercial surrogacy in Aotearoa New Zealand, we recommend clarifying and expanding the types of costs incurred by the surrogate that intended parents should be able to meet, including compensation for lost earnings.

We are grateful for the views of all of those who have engaged with us on this review. We are confident our recommendations will provide the foundation for better surrogacy law for Aotearoa New Zealand.

Amokura Kawharu

Tumu Whakarae | President

iii FOREWORD

ACKNOWLEDGEMENTS TE AKA MATUA O TE TURE | LAW COMMISSION

Acknowledgements

Te Aka Matua o te Ture | Law Commission gratefully acknowledges the contributions of all who have helped us in this review.

We acknowledge the generous contribution to the review made by our Expert Advisory Group in sharing their expertise on the issues arising from current surrogacy law and engaging in rigorous discussion of our reform proposals. Members of the Group were Dr Claire Achmad, Associate Professor Debra Wilson, Margaret Casey QC and Stewart Dalley.

We acknowledge the individuals who engaged with us in the initial stages of this review to share an ao Māori perspective on surrogacy, including Dr Annabel Ahuriri-Driscoll (Ngāti Porou, Ngāti Kauwhata, Rangitāne, Ngāti Kahungunu), Professor Jacinta Ruru (Raukawa, Ngāti Ranginui, Ngāti Maniapoto, Pākehā), Dr Karaitiana Taiuru (Ngāi Tahu, Ngāti Rārua, Ngāti Kahungunu, Pākehā), Professor Marewa Glover (Ngāpuhi) and Te Ripowai Higgins (Tūhoe).

We acknowledge and appreciate the ongoing support and guidance from the Māori Liaison Committee to the Commission.

Finally, we thank the individuals and organisations who kindly shared their expertise, experience and views through taking the time to make a submission.

We emphasise nevertheless that the views expressed in this Report 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 worked on this Report are Briar Peat (Ngāti Rangiwewehi, Ngāti Whakaue), Samuel Mellor and Tom White. The law clerks who worked on this Report are Emma Sidnam and Marko Garlick.

Contents

Glossary

Executive summary

INTRODUCTION (CHAPTER 1)

1. Surrogacy is a unique method of building a family that provides intended parents with an opportunity to have a child when they are otherwise unable to do so. It can, however, involve complex legal, ethical, cultural and medical issues because it relies on the participation of a surrogate, who agrees to become pregnant, carry and give birth to a child for the intended parents.

2. This review has examined surrogacy law, regulation and practice in Aotearoa New Zealand. We have looked at the regulatory framework established under the Human Assisted Reproductive Technology Act 2004 (HART Act), the rules that determine a surrogate-born child’s legal parents under the Status of Children Act 1969 and the adoption process that must be followed under the Adoption Act 1955 to transfer legal parenthood from the surrogate to the intended parents.

3. We have identified a pressing need for reform. The law fails to meet the needs and reasonable expectations of New Zealanders in many respects. This Report makes 63 recommendations for reform that seek to amend existing legislation, including the HART Act and the Status of Children Act, and drive changes to regulatory practice to better provide for surrogacy in Aotearoa New Zealand. These recommendations, taken as a whole, affirm the prohibition on commercial surrogacy in Aotearoa New Zealand and make improvements to safeguard the rights and interests of surrogate-born children, surrogates and intended parents.

SURROGACY IN PRACTICE (CHAPTER 2)

4. More New Zealanders are using surrogacy to build their family, although exact numbers are difficult to establish. A very broad estimate is that up to 50 children may be born as a result of surrogacy arrangements each year. This includes children born as a result of gestational and traditional surrogacy arrangements and domestic and international surrogacy arrangements where the intended parents live in Aotearoa New Zealand and the surrogate lives in another country.

5. The increasing use of surrogacy in Aotearoa New Zealand is likely due to several factors, including changing social attitudes to diverse families and increasing acceptance of surrogacy as a legitimate form of family building, especially for male couples, trans people and single men who are unable to carry a child themselves. Other factors likely include declining rates of adoption, growing rates of infertility, advances in assisted reproductive technology and increasing focus on fertility preservation. These factors will continue to drive the use of surrogacy in future. The use of international surrogacy is also increasing. This appears to be driven factors including difficulties finding a surrogate in Aotearoa New Zealand, increased availability of donated gametes overseas, the availability of commercial

surrogacy, higher success rates and greater reproductive choices overseas and increasing cultural diversity in Aotearoa New Zealand, which means many New Zealanders have links to two or more countries.

6. A growing body of empirical research demonstrates largely positive outcomes for surrogates, surrogate-born children and their families. Most of this research is based in the United Kingdom, although several small studies have examined the experiences of surrogates and intended parents in Aotearoa New Zealand. There is, however, limited research about Māori participation in surrogacy, which is low, and Māori perspectives of surrogacy. There is also limited information about the long-term impacts of surrogacy on surrogate-born people. These and other limitations suggest a cautious approach to regulation is required to protect and promote the rights and interests of surrogate-born children, surrogates and intended parents.

7. In te ao Māori, the modern practice of surrogacy requires tikanga Māori to respond to new circumstances. We suggest that the core tikanga principles of whakapapa and whanaungatanga are of central importance to considering surrogacy from an ao Māori perspective. The tikanga principles of tapu, mana, manaakitanga, kaitaikitanga and aroha are also likely to be relevant. Further consideration is needed to explore how tikanga responds to surrogacy. We recommend the Government commission Māori-led research to provide a better understanding of tikanga Māori and surrogacy and Māori perspectives on surrogacy.

DEVELOPING GOOD SURROGACY LAW (CHAPTER 3)

8. Surrogacy engages important rights and interests that must be considered and, at times, carefully balanced in order to develop good surrogacy law. We have examined rights and interests that arise from tikanga Māori, te Tiriti o Waitangi | Treaty of Waitangi and human rights law and have developed a set of guiding principles for surrogacy law reform.

9. Our guiding principles are:

• Principle 1: Surrogacy law should reflect the Crown’s obligations under te Tiriti o Waitangi to exercise kāwanatanga in a responsible manner, including facilitating the exercise of tino rangatiratanga by Māori in the context of surrogacy. This principle requires ensuring that Māori can act in accordance with tikanga in the surrogacy context, should they wish to do so. It also means weaving new law that reflects tikanga Māori and other values shared by New Zealanders, such as the importance of children’s best interests and the significance of whakapapa for tamariki Māori. Inequities in access to surrogacy must also be addressed, and promoting tino rangatiratanga requires better representation of Māori in decision-making.
• Principle 2: The best interests of the surrogate-born child should be paramount. Children have rights under the United Nations Convention on the Rights of the Child (UNCROC) that must be protected in the surrogacy context. Under UNCROC, the best interests of the child must be a primary consideration in all actions concerning children. Given surrogacy is concerned with the creation of a child, we consider that their best interests should be paramount. This is consistent with international best practice and requires protecting and promoting children’s rights to identity, nationality, family life, health, freedom from discrimination and protection from abuse, exploitation and sale.

• Principle 3: Surrogacy law should support surrogates and intended parents to enter surrogacy arrangements that protect and promote their health, safety, dignity and human rights. People who enter surrogacy arrangements have human rights and interests that need to be protected and promoted, including rights related to personal autonomy, equality and non-discrimination, rights to respect cultural identity, and health and disability rights.
• Principle 4: Parties to a surrogacy arrangement should have early clarity and certainty about their rights and obligations. This will reduce uncertainty and the risk of disagreements arising between the parties.
• Principle 5: New Zealand intended parents should be supported to enter surrogacy arrangements in Aotearoa New Zealand rather than offshore. We have sought to improve the conditions for domestic surrogacy arrangements where appropriate to reduce the need for intended parents to rely on international surrogacy, which can present complex issues and greater risks.

10. These guiding principles underpin the recommendations we make in this Report. We think that applying these principles will result in good surrogacy law, namely, law that meets the needs and reasonable expectations of New Zealanders and protects and promotes the rights and interests of people involved in surrogacy arrangements.

REGULATING SURROGACY ARRANGEMENTS (CHAPTER 4)

11. Surrogacy arrangements are regulated by the HART Act, which establishes a regulatory framework for assisted reproductive procedures and human reproductive research. Certain procedures that fall under the HART Act require prior approval by the Ethics Committee on Assisted Reproductive Technology (ECART) in accordance with guidelines issued by the Advisory Committee on Assisted Reproductive Technology (ACART).

12. Currently, gestational surrogacy arrangements require prior approval from ECART, but traditional surrogacy arrangements do not.

13. We conclude that the ECART approval process is appropriate for surrogacy arrangements. It is an effective and robust safeguard that protects the rights and interests of the surrogate, the intended parents and the resulting child and reduces the risk of problems arising during the arrangement. It received broad support from submitters on the Issues Paper, is consistent with international best practice and provides confidence in the integrity of a surrogacy arrangement, reducing the need for a prescriptive process to establish legal parenthood.

14. For these reasons, we recommend that all clinic-assisted surrogacy arrangements should be required to obtain ECART approval, including traditional surrogacy arrangements that seek clinic assistance (which currently do not require ECART approval). All surrogacy arrangements can be ethically complex and present their own risks. Participants in a traditional surrogacy arrangement should be able to access the benefits of the ECART process on the same basis as parties to gestational surrogacy arrangements, regardless of the surrogate’s genetic connection to the surrogate-born child. For this reason, we also recommend that the Government should consider ways to encourage parties to traditional surrogacy arrangements to participate in the ECART approval process.

15. We also conclude that the Government should review the resourcing and operation of ECART and its associated processes. There was a widespread view among submitters that

the current process is too slow and inadequately resourced. As more people seek to use surrogacy to build their families in future, changes will be needed to ensure applications can be considered in a timely manner, consistent with the principles of the HART Act.

IMPROVING THE APPROVAL PROCESS (CHAPTER 5)

16. We make several recommendations to improve the operation of the ECART approval process.

Redefining Oranga Tamariki’s role in the approval process

17. Currently, an Oranga Tamariki | Ministry for Children social worker must assess whether intended parents are “fit and proper” to care for and raise the child as part of the adoption process. As a consequence of this requirement, ECART requires in-principle approval from Oranga Tamariki to the intended parents adopting any resulting child before approving a surrogacy arrangement. Oranga Tamariki’s role includes making documentary checks (police background checks, medical record checks, character references and child protection checks) and conducting home visits and assessment interviews.

18. We conclude that a different approach is needed for surrogacy arrangements. The state should not assess intended parents’ general suitability to be parents. It is, however, important to retain some form of minimum pre-conception checks, to safeguard the wellbeing of any resulting child and ensure the state meets its international human rights obligations under UNCROC. Oranga Tamariki’s role in the approval process should therefore be redefined to focus on advising ECART on whether it has any serious concerns in relation to the risk of harm to any resulting child. Its process should include basic background checks (such as criminal record and child protection checks) and further investigation only if those basic checks identify a concern that should be investigated further. These changes would simplify Oranga Tamariki’s role for the vast majority of applications that will not require further investigation and would enable the state to meet its obligations under UNCROC in a minimally invasive manner.

Recording surrogacy arrangements in writing

19. Currently, there is no requirement to record surrogacy arrangements in writing. This is a common requirement in other jurisdictions. We think that there are clear benefits to requiring the parties to record their intentions prior to conception in a single document that they can refer to throughout the arrangement. We therefore recommend that parties to surrogacy arrangement prepare and sign a “surrogacy plan”. While not an enforceable contract (except in relation to payment of costs, discussed below), it would provide a greater degree of certainty for the parties and assist them to resolve any problems that occur later in the arrangement. A surrogacy plan would also provide clear evidence of the parties’ original intentions in the event of any dispute that must be resolved by the court.

Improving counselling requirements

20. The parties’ participation in individual and joint counselling is an integral part of the ECART approval process. We found a high level of satisfaction with the current counselling requirements. However, we recommend improving counselling requirements in one respect to expressly require counselling to address the identity rights of surrogate-born people, including the parties’ plans for sharing identity information with the child, and the child’s

rights to access information about their genetic and gestational origins and whakapapa that is preserved on the surrogacy birth register (see below). Ensuring the parties are supported and encouraged to think about how they will share identity information with the child will help promote the rights and future wellbeing of surrogate-born people.

Supporting Māori to act in accordance with tikanga

21. A principle of the HART Act is that the needs, values and beliefs of Māori should be considered and treated with respect. While there is a requirement for counselling to be “culturally appropriate”, we have identified a gap between these requirements and what it means in practice to ensure that counselling meets the needs of Māori. We therefore recommend that ACART provide further guidance on providing counselling that is culturally appropriate from an ao Māori perspective.

Duration of ECART approvals

22. ECART’s practice is to impose a three-year time limit on surrogacy approvals with the possibility to extend this if there have been no significant changes to the arrangement. However, in some situations, it may take a long time for a surrogate to become pregnant. The current time limit can create further cost, administrative burden and delay in some circumstances. We recommend that ACART consider issuing guidance or advice in relation to duration of approvals of surrogacy arrangements, when an application for an extension of approval will be considered and the process for making and granting extensions.

Reviewing ECART decisions

23. A decision made by ECART to decline a surrogacy application can have a significant impact on the lives of the applicants. Despite this, the HART Act does not provide for a right of independent review of ECART decisions, although ECART may reconsider an application previously declined if new information becomes available. When legislation authorises decisions that significantly affect individual interests, there generally ought to be an opportunity for challenge by way of independent appeal or review. This serves to correct error, to supervise and improve decision-making at first instance and to help maintain public confidence in the regulatory system. We therefore recommend establishing a right to independent review of any decision made in relation to a surrogacy arrangement by ECART and the creation of an expert panel to review ECART decisions as and when required.

Composition of ECART and ACART

24. The HART Act was enacted 18 years ago, and the existing membership requirements for both ACART and ECART are out of date. We recommend the Government review the membership requirements for ACART and ECART in order to strengthen their knowledge and expertise. We recommend giving particular consideration to improving Māori representation and representation of the interests of children and increasing expertise in assisted reproductive procedures.

Monitoring and reporting on outcomes

25. ACART and ECART have statutory roles in monitoring the outcomes of surrogacy arrangements and other assisted reproductive procedures. Given the importance of these roles to the integrity of the regulatory framework, we make several recommendations to

support the performance of these roles in practice. We recommend that ECART establish clear procedures for applicants and other affected parties to provide feedback on, and make complaints in relation to, the operation of the ECART approval process. We also recommend that ECART be required under legislation to prepare an annual report on its operations and for both ACART and ECART annual reports to be published as soon as practicable.

LEGAL PARENTHOOD (CHAPTER 6)

26. Currently, there are no specific legal parenthood laws that deal with the unique relationships that exist in surrogacy arrangements. Instead, parties must rely on the adoption process to transfer legal parenthood from the surrogate (and any partner) to the intended parents. This fails to reflect the reality of surrogacy arrangements. Adoption and surrogacy are two legitimate but conceptually different forms of family building that require different policy responses and legal frameworks. The adoption process is inappropriate for establishing legal parenthood in surrogacy arrangements and results in problems, as illustrated by the introduction and enactment of the Paige Harris Birth Registration Act 2022.

27. A new framework is required for determining legal parenthood in surrogacy arrangements. We recommend amending the Status of Children Act to introduce two pathways for intended parents to establish legal parenthood, an administrative pathway and a court pathway. Under both pathways, the child would become the legal child of the intended parents and cease to be the legal child of the surrogate. Providing for two pathways to determine legal parenthood in surrogacy arrangements would accommodate the diversity of surrogacy arrangements that are possible.

28. We recommend introducing an administrative pathway for determining legal parenthood under which the intended parents are recognised as the surrogate-born child’s legal parents by operation of law without the need for a court order. The administrative pathway would apply in situations where the surrogacy arrangement was approved by ECART and, after the child is born, the intended parents have taken the child into their care and the surrogate has consented to relinquish any claim to legal parenthood. The intended parents should, from the time of the child’s birth until the surrogate gives consent, be deemed to be additional legal guardians of the child which would give them legal rights and responsibilities to care for the child and made decisions about their care from birth. We expect this administrative pathway will be the primary means of establishing the intended parents’ legal parenthood in domestic surrogacy arrangements.

29. We also recommend introducing a court pathway to enable te Kōti Whānau | Family Court to make a parentage order determining the intended parents are the child’s legal parents after the child is born in situations when the administrative pathway does not apply. The court pathway would be available in respect of a traditional surrogacy arrangement that was not required to obtain ECART approval. It would also provide a pathway for resolving a dispute over legal parenthood, although we note that such disputes are rare in practice. The Family Court must be satisfied that making the parentage order is in the best interests of the child, having regard to a list of relevant considerations. When an application for a parentage order is made, the Family Court will be required to appoint a parentage order reporter, who will be a specialist Oranga Tamariki social worker, to independently advise the Court on matters relevant to the child’s best interests. In situations where the parties

did not go through the ECART process or there is a dispute over legal parenthood, we think it is important that the Court hears an independent voice on the matters relevant to the parentage order application.

30. We make specific recommendations to accommodate the different situations that might arise in the surrogacy context that are not currently accommodated within the adoption process. In addition to providing the Family Court with jurisdiction to resolve disputes over legal parenthood, we clarify that the surrogate’s partner should not be presumed to be the parent of any surrogate-born child and that, if a surrogate dies or is unable to give consent under the administrative pathway, the Family Court should be able to make a parentage order. Both pathways should continue to be available if the surrogate-born child was still- born or died shortly after birth or if an intended parent or both intended parents die. We also accommodate historical surrogacy arrangements that have not been formalised by adoption. We think that a parentage order should be available in respect of any child born as a result of a surrogacy arrangement, regardless of when that child was born.

PRESERVING ACCESS TO IDENTITY INFORMATION (CHAPTER 7)

31. Information about genetic and gestational origins and whakapapa is fundamental to a surrogate-born person’s identity and wellbeing. While many intended parents are, or intend to be, open with their child about their origins, we think that the state also has a duty to preserve access to identity information for surrogate-born people.

32. There is no single, centralised system to collect, record and provide access to information about a surrogate-born person’s genetic and gestational origins and whakapapa. Rather, different information is collected and accessed under the Births, Deaths, Marriages, and Relationships Registration Act 1995, the HART Act and the Adult Adoption Information Act 1985.

33. We recommend establishing a national register of surrogate-born people (the surrogacy birth register) to preserve access to certain information for surrogate-born people about their genetic and gestational origins and whakapapa. The surrogacy birth register would be administered by Te Tari Taiwhenua | Department of Internal Affairs and would require the Registrar-General to record information about a surrogacy arrangement at the time a child’s birth is registered or when notified of a parentage order issued by the Family Court. Information about the surrogate, including name, date and place of birth, ethnicity, any relevant cultural affiliation and hapū and iwi affiliations (if known), should be captured. In traditional surrogacy arrangements, additional genetic information should be recorded about the surrogate, consistent with the current requirements for gamete donors under the HART Act.

34. A surrogate-born person should be able to access information about their origins subject only to the limitations under the Privacy Act 2020. We do not recommend a blanket age restriction as currently exists in respect of access to adoption information and information about gamete donors. We also acknowledge that people receiving their information may require support such as counselling. We therefore recommend that the Government consider ways to support people accessing information on the surrogacy birth register.

35. We do not recommend changes to the information that is recorded on a surrogate-born child’s birth certificate. Instead, we conclude that the Government should conduct a thorough, first-principles review of the birth registration system to consider whether it

meets the needs and reasonable expectations of people in contemporary Aotearoa New Zealand. Consultation revealed strong support for changes to the birth registration system and what information is recorded on a birth certificate, but we are conscious that similar issues arise for people born through donor conception, adopted people, people raised under whāngai and other cultural arrangements and people in diverse family arrangements, such as three or more parent models. Our view is that any changes to birth certificates and the birth registration system need to consider the range of different circumstances of conception, birth and legal parenthood.

FINANCIAL SUPPORT FOR SURROGATES (CHAPTER 8)

36. The HART Act prohibits the exchange of “valuable consideration” in surrogacy arrangements. While this is directed towards prohibition of commercial surrogacy, it creates uncertainty about what financial support, if any, intended parents can provide to surrogates. This uncertainty is undesirable because it may leave surrogates financially worse off as a result of participating in a surrogacy arrangement, place unnecessary stress on the relationship between intended parents and surrogates and create barriers for women considering becoming a surrogate in Aotearoa New Zealand.

37. We recommend that the law be clarified to allow payments to the surrogate for reasonable surrogacy costs actually incurred in relation to a surrogacy arrangement. The HART Act should be amended to provide guidance on what constitutes reasonable surrogacy costs. This should include reasonable medical, travel and accommodation costs, costs relating to care of the surrogate’s dependants, insurance costs, compensation for a surrogate’s loss of earnings and reasonable out-of-pocket expenses. Payment of any of these costs would be by agreement between the parties. Any agreement to pay surrogacy costs made prior to conception should be enforceable. This will encourage the parties to plan in advance for the payment of surrogacy costs and reduces the risk of undue pressure being exerted by any party throughout the arrangement to alter the agreement.

38. We do not recommend permitting the payment of a fee to surrogates for their participation in a surrogacy arrangement in addition to paying a surrogate’s reasonable surrogacy costs actually incurred. We have concluded that, while potential benefits exist in allowing the payment of fees, these do not outweigh the strong arguments against such an approach. Payment of fees to surrogates would constitute a radical change in public policy and would represent a significant step towards the commercialisation of surrogacy. We are not satisfied that this reflects the reasonable expectations of New Zealanders, and it would be inconsistent with the approach to other donative practices in Aotearoa New Zealand, such as embryo and gamete donation, organ donation and blood donation. Furthermore, permitting the payment of fees may contravene New Zealand’s international human rights obligations to take appropriate measures to prevent the sale of children, would run counter to calls from those with lived experience of surrogacy to avoid commercialisation and may increase the risk of exploitation of women who offer to be surrogates. Additional factors that weigh against allowing the payment of fees to surrogates are that it would be inconsistent with the approach in comparable jurisdictions, thereby making cross-border recognition of surrogacy arrangements more difficult, and it would increase the cost of surrogacy, thereby reducing its accessibility for some intended parents.

39. We have also considered what government support should be available to surrogates. We recommend that the Government publish guidance clarifying that surrogates are entitled

to paid parental leave on the same basis as other pregnant people under the Parental Leave and Employment Protection Act 1987. We also conclude that the effect of entering a surrogacy arrangement on benefits a surrogate receives under the Social Security Act 2018 should be clarified to ensure that surrogates who receive a benefit under that Act are not financially disadvantaged by their decision to enter a surrogacy arrangement.

INTERNATIONAL SURROGACY (CHAPTER 9)

40. International surrogacy, where the intended parents and the surrogate do not live in the same country, has become a global phenomenon over the past two decades. Most international surrogacy arrangements are commercial in nature. There is no internationally agreed framework or agreement to regulate international surrogacy arrangements, although the Hague Conference on Private International Law (Hague Conference) is continuing to work towards an international instrument.

41. International surrogacy presents complex issues. Countries regulate surrogacy and legal parenthood in different ways, which can cause problems when intended parents seek to return to Aotearoa New Zealand with a surrogate-born child. Some international surrogacy arrangements lack the same protections for the child, the surrogate and the intended parents as domestic surrogacy arrangements.

42. Throughout this Report, we make recommendations designed to support intended parents to enter surrogacy arrangements in Aotearoa New Zealand rather than overseas. However, some intended parents will still choose to engage in international surrogacy. We conclude that international surrogacy arrangements must be accommodated within the new framework we recommend for determining legal parenthood in domestic surrogacy arrangements.

43. We acknowledge that this issue attracts competing views. Some people think that New Zealanders should be prohibited from engaging in international surrogacy arrangements given the risks such arrangements pose to surrogate-born children, surrogates and intended parents, while others consider that legal parenthood established as a result of an international surrogacy arrangement should be automatically recognised in Aotearoa New Zealand. Our view is that neither of these approaches promote the child’s best interests. Prohibiting international surrogacy precludes an examination of whether recognising the intended parents as the child’s legal parents is in the child’s best interests. On the other hand, in the absence of an internationally agreed framework that sets minimum requirements for the regulation of surrogacy and the recognition of legal parenthood, Aotearoa New Zealand cannot be confident that automatically recognising legal parenthood established in an international surrogacy arrangement is in the child’s best interests. The Government must exercise oversight to promote and protect the rights and interests of the surrogate-born child and fulfil its obligations under international human rights law.

44. We therefore recommend that the Family Court should have jurisdiction to make a parentage order under the court pathway when a child is born as a result of a surrogacy arrangement, whether or not the child was born in Aotearoa New Zealand. We also recommend that the Family Court adopt a special process for applications that concern a child born outside Aotearoa New Zealand, implementing on a permanent basis the approach introduced by the Family Court in response to the Covid-19 pandemic. The consequence of these recommendations is that intended parents will be able to start the

process to secure legal parenthood of a surrogate-born child under New Zealand law at an early opportunity and have legal parenthood determined shortly after the child is born and before returning with the child to Aotearoa New Zealand. As with domestic surrogacy arrangements, the Family Court would need to be satisfied that granting a parentage order is in the child’s best interests.

45. We also recommend that the Government consider further a regime for the recognition of legal parenthood established in respect of surrogacy in other jurisdictions following the completion of the ongoing work of the Hague Conference on parentage and surrogacy. Should this work result in an international instrument that outlines minimum safeguards for international surrogacy or a clear process for recognition of legal parenthood, this would provide confidence that recognising the legal relationship between the intended parents and a surrogate-born child established in a member state is in the child’s best interests.

IMPROVING ACCESS TO SURROGACY (CHAPTER 10)

Availability of information

46. There is no single, public source of official information on surrogacy in Aotearoa New Zealand. Instead, information is fragmented across different government departments, lacks detail and is not easy to find. We conclude that the Government should produce comprehensive and clear information on surrogacy law and practice. This information should be made available on a website that acts as a centralised, official and up-to-date source of information for New Zealanders considering having a child by surrogacy or becoming a surrogate. We recommend that the information and website should be administered by Manatū Hauora | Ministry of Health.

Reducing barriers to connecting intended parents and potential surrogates

47. It can be difficult for intended parents to find someone who is willing to act as a surrogate in Aotearoa New Zealand. In practice, many women who act as surrogates are family members or close friends of the intended parents, although increasing numbers of intended parents and surrogates are meeting online through private surrogacy forums.

48. Several recommendations in this Report seek to reduce barriers for women considering becoming a surrogate, including clarifying the financial support available for surrogates. Improving the availability of information, discussed above, could also encourage some women to consider acting as surrogates. We considered other options to reduce barriers to connecting intended parents and potential surrogates, including permitting advertisers to be paid for advertising lawful surrogacy arrangements, establishing a surrogacy register to enable women who are interested in becoming a surrogate to register their interest and be matched with intended parents and permitting private intermediaries to operate in Aotearoa New Zealand on a non-profit and regulated basis.

49. We conclude that the HART Act should be amended to allow paid advertising in respect of lawful surrogacy arrangements. The current prohibition is problematic and is becoming increasingly irrelevant in the age of social media. Allowing paid advertising would broaden the ways that intended parents and potential surrogates can reach out to each other.

50. We do not recommend a surrogacy register and matching service or permitting private intermediaries to operate on a non-profit and regulated basis. Neither option received strong support in consultation. We think that the state’s role should be to provide a safe

and effective regulatory framework for surrogacy arrangements — actively facilitating individual surrogacy arrangements through a surrogacy register and matching service would extend significantly beyond this. We are also concerned that a surrogacy register may not be workable in practice and may duplicate existing safeguards. We are not persuaded that the law should permit private intermediaries to operate in Aotearoa New Zealand given that online communities already operate and that enabling intended parents to pay for advertisements for a surrogate will provide a new avenue through which surrogates and intended parents may connect. There would be a cost associated with regulating intermediaries and even non-profit intermediaries would charge fees to intended parents which would increase the cost of surrogacy in Aotearoa New Zealand.

Availability of experienced lawyers

51. There are a limited number of lawyers with experience advising on surrogacy arrangements. We recommend that Te Kāhui Ture o Aotearoa | New Zealand Law Society and other professional lawyer bodies consider providing ongoing professional development in relation to surrogacy, including following the enactment of any new surrogacy law. In addition, lawyers specialising in surrogacy law should be able to be identified by practice area and have appropriate mentoring opportunities.

Public funding for surrogacy

52. The availability of public funding for surrogacy is a common concern. There is no specific allocation of public funding for surrogacy-related fertility treatment. Instead, public funding is determined using the Clinical Priority Assessment Criteria (CPAC). People who use surrogacy because they lack the sex characteristics to become pregnant, such as male couples and single men, do not qualify for funding under this model. There are also concerns regarding equity of access and cost for Māori and Pacific peoples.

53. We recommend that the Government should review how it funds surrogacy, including surrogacy-related fertility treatment as well as the costs associated with the ECART process. We also think that the Government should consider conducting a broader review of funding for fertility treatment generally. Any broader review should include reconsideration of CPAC and whether it disadvantages Māori and Pacific peoples.

Availability of donor gametes in Aotearoa New Zealand

54. The availability of donor gametes (ova and sperm) directly impacts on access to surrogacy in Aotearoa New Zealand. Limited availability of donor gametes is a key driver for New Zealanders to seek fertility treatment overseas. However, as with public funding, this is a matter that cannot be addressed in the context of surrogacy alone. We recommend therefore that the Government review the supply of donor gametes in Aotearoa New Zealand. It should consider whether donors should be compensated for reasonable expenses incurred and whether restrictions on importing gametes and embryos into Aotearoa New Zealand should be relaxed in certain limited circumstances.

Recommendations

CHAPTER 2: SURROGACY IN PRACTICE

CHAPTER 4: REGULATING SURROGACY ARRANGEMENTS

CHAPTER 5: IMPROVING THE APPROVAL PROCESS

CHAPTER 6: LEGAL PARENTHOOD

CHAPTER 7: PRESERVING ACCESS TO IDENTITY INFORMATION

CHAPTER 8: FINANCIAL SUPPORT FOR SURROGATES

CHAPTER 9: INTERNATIONAL SURROGACY

CHAPTER 10: IMPROVING ACCESS TO SURROGACY

CHAPTER 1

Introduction

• 1.1 Surrogacy is a unique method of family building. It provides intended parents 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 (the surrogate) who agrees to become pregnant, carry and give birth to a child for the intended parents, it can raise complex legal, ethical, cultural and medical issues.
• 1.2 In 2020, Te Aka Matua o te Ture | Law Commission (the Commission) was asked to undertake a review of surrogacy in Aotearoa New Zealand. This is not the first time the Commission has reviewed this area of law. 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.
• 1.3 Our review has comprehensively examined surrogacy law, regulation and practice in Aotearoa New Zealand. We have focused on identifying improvements to meet the needs and reasonable expectations of New Zealanders in a way that safeguards the rights and interests of people involved in surrogacy arrangements, including surrogate- born children, surrogates and intended parents.
• 1.4 This Report sets out our findings and makes recommendations for change.2

OUR REVIEW

• 1.5 The terms of reference for this review were published in March 2021. The terms of reference explained that our review would include (but not be limited to) consideration of:

(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;

¹ Te Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at [7.57].

² In te reo Māori, the title of this Report is Te Kōpū Whāngai: He Arotake. The term “kōpū whāngai” is used to describe surrogacy and comprises kōpū (womb, uterus) and whāngai (to care for an adopted or fostered child), and a literal translation could be “the adoptive womb”. The term “he arotake” translates to “a review”. Whāngai arrangements are discussed in greater detail in Chapter 2 of this Report.

(d) how the law should attribute legal parenthood in surrogacy arrangements;

(e) how international surrogacy arrangements (where either the intended parents or the surrogate live overseas) should be provided for in New Zealand law; and

(f) what information should be available to surrogate-born children.

• 1.6 Our review has considered 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.
• 1.7 In July 2021, we published our Issues Paper and consultation website. This followed extensive research and preliminary consultation with people who shared with us their personal experience of surrogacy arrangements and the issues they faced as well as representatives from fertility clinics, academics, lawyers and officials from the different government agencies that have a role in the regulation of surrogacy. 3 We also engaged with individuals who shared an ao Māori perspective on surrogacy with us to better understand the interests of Māori in this area.
• 1.8 We received 223 submissions on the Issues Paper. This comprised 183 submissions from individuals submitting in a personal capacity (personal submissions), 31 submissions from organisations,4 eight submissions from individuals submitting from an academic perspective (academic submissions)5 and comments from the Judges of the Family Court.
• 1.9 Throughout this review, we have drawn on recent research undertaken in Aotearoa New Zealand, including Te Whare Wānanga o Waitaha | University of Canterbury’s project Rethinking Surrogacy Laws. We have also examined the law and reform initiatives in comparable jurisdictions, with a particular focus on Australia, England and Wales, Scotland, Ireland and Canada. At the time of writing, proposed reforms are progressing through legislative bodies in Ireland, the Northern Territory and Quebec, and the Law Commission of England and Wales and the Scottish Law Commission are actively reviewing surrogacy law.

³ See Te Aka Matua o te Ture | Law Commission Review of Surrogacy | Te Kōpū Whāngai: He Arotake (NZLC IP47, 2021) at [1.22]–[1.28] for further discussion of the process leading up to the publication of the Issues Paper.

⁴ Advisory Committee on Assisted Reproductive Technology, Auckland Women’s Health Council, Australian and New Zealand Infertility Counsellors Association, Center for Bioethics and Culture Network, Ethics Committee on Assisted Reproductive Technology, Family First New Zealand, Family Planning New Zealand, Federation of Women’s Health Councils Aotearoa, Feminist Legal Clinic, Fertility Associates, Fertility New Zealand, Fertility Plus, International Coalition for Abolition of Surrogate Motherhood, Maternity Services Consumer Council, National Council of Women of New Zealand, New Zealand College of Midwives, New Zealand Council of Trade Unions, New Zealand Nurses Organisation, Ngā Rangahautira, Nurse Practitioners New Zealand, Office for Disability Issues, Office of the Children’s Commissioner, Office of the Health and Disability Commissioner, Privacy Commissioner, Oranga Tamariki | Ministry for Children, Queerly Legal, Karetai Wood-Bodley & Co and ILGA Oceania (submitting jointly), Repromed, Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Te Kāhui Ture o Aotearoa | New Zealand Law Society, Te Tari Taiwhenua

| Department of Internal Affairs and Voice for Life Hutt Valley.

⁵ Dr Anne Else, Associate Professor Kate Galloway, Professor Mary Keyes and Sarah Hoff (submitting jointly), Adjunct Professor Ken Daniels, Dr Liezl van Zyl and Dr Ruth Walker (submitting jointly), Associate Professor Maria Hook and Jack Wass (submitting jointly), Professor Mark Henaghan, Associate Professor Rhonda Shaw and Dr Ronli Sifris.

• 1.10 We have also given particular attention to international developments on the regulation of surrogacy. Since 2010, the Hague Conference on Private International Law (Hague Conference) has been considering international law issues relating to legal parentage. It convened an Experts’ Group in 2015, which is working on potential provisions for a general private international law instrument on legal parentage and a separate protocol on legal parentage established as a result of international surrogacy arrangements.6 In addition, in 2021, the International Social Service7 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.8 This followed two thematic reports on surrogacy by the United Nations Special Rapporteur on the sale and exploitation of children, including child prostitution, child pornography and other child sexual abuse material (UN Special Rapporteur).9 In 2022, UNICEF and Child Identity Protection10 also published recommendations for the regulation of surrogacy to protect the rights of the child.11 We draw on this work where relevant throughout this Report.
• 1.11 Throughout this review, we have been supported by an Expert Advisory Group and have received guidance from the Commission’s Māori Liaison Committee.

OUR APPROACH TO BROADER QUESTIONS

• 1.12 Any examination of surrogacy law must start with two broad questions. First, should surrogacy be permitted or prohibited in all forms? Second, if surrogacy is to be permitted, should commercial surrogacy arrangements be permitted? An extensive body of academic research and literature examines these questions from legal, ethical, human rights and feminist perspectives. Nonetheless, these questions continue to attract a range of different views and regulatory responses.

⁶ For more information on the Parentage / Surrogacy Project see Permanent Bureau of the Hague Conference on Private International Law “Parentage / Surrogacy” <www.hcch.net>.

⁷ The International Social Service (ISS) is an international non-governmental organisation consisting of a network of national entities and a General Secretariat that assist children and families confronted with complex social problems as a result of migration. ISS has a presence in more than 120 countries. In addition to casework, ISS undertakes training projects, awareness raising and advocacy work in an effort to better respect children’s rights. For more information see International Social Service “Who We Are” <iss-ssi.org>.

⁸ International Social Service Principles for the protection of the rights of the child born through surrogacy (Verona principles) (Geneva, 2021). The Verona Principles were prepared by a core group of experts convened and coordinated by the International Social Service (Claire Achmad, Nigel Cantwell, Patricia Fronek, Olga Khazova, John Pascoe, David Smolin, Katarina Trimmings and Michael Wells-Greco). Preparation of the Verona Principles involved substantial consultations and contributions from over 100 experts covering multiple disciplines and perspectives, regions and

national and international contexts, at 5. 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.

⁹ 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).

¹⁰ Child Identity Protection is an international non-governmental organisation that advocates for the protection of children’s identity rights in family relations. For more information see Child Identity Protection “About Us” <www.child- identity.org>.

¹¹ UNICEF and Child Identity Protection Key Considerations: Children’s Rights & Surrogacy (Briefing Note, February 2022).

Should surrogacy be permitted or prohibited?

• 1.13 Globally, there is no consensus on 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.12
• 1.14 Section 14 of the HART Act addresses the legality of surrogacy arrangements in Aotearoa New Zealand.13 It provides that a surrogacy arrangement “is not of itself illegal, but is not enforceable by or against any person”.14 This can be said to reflect a “permissive” approach to surrogacy that is consistent with the approach taken in other jurisdictions to which Aotearoa New Zealand often compares itself (including Australia, England, Wales, Scotland and Canada).
• 1.15 Surrogacy continues to be prohibited in other countries, including Germany, France, Austria and Spain as well as in the Nordic countries of Sweden, Iceland, Finland and Norway. In such jurisdictions, all forms of surrogacy arrangements are viewed as violating the dignity of women:15

The concern is not about the individual woman as such but about the way in which it treats female body parts as a means to an end, rather than for their essential value as part of humanity. On this view, surrogacy does violence to the way we think about the body, life, and women’s reproductive capacities in commodifying them, and thus reducing them to an economic value.

• 1.16 In consultation, we received some submissions that expressed this view, arguing that surrogacy violates the dignity of women and leads to exploitation and commodification of women and children. We received 30 submissions that opposed all forms of surrogacy on this basis (13 per cent of submissions received).16
• 1.17 While we acknowledge this perspective, this review does not reconsider Parliament’s decision to permit surrogacy in Aotearoa New Zealand. Since the enactment of the HART Act in 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 evidence suggests that public opinion supports surrogacy continuing to be legal. In addition, the growing body of empirical research into the impact of surrogacy arrangements we outline in Chapter 2 demonstrates largely positive outcomes for surrogate-born children, their families and surrogates.
• 1.18 It is also important to highlight the practical difficulties with adopting a prohibitive approach. These have been demonstrated in overseas experience. A prohibitive

¹² 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.

¹³ 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”).

¹⁴ Human Assisted Reproductive Technology Act 2004, s 14(1).

¹⁵ 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 577. See also Maria De Koninck Stolen Motherhood: Surrogacy and Made-to-Order Children (Baraka Books, Montréal, 2020).

¹⁶ Comprising 25 personal submissions and 5 submissions from organisations (Center for Bioethics and Culture Network, Family First New Zealand, Feminist Legal Clinic, International Coalition for Abolition of Surrogate Motherhood and Voice for Life Hutt Valley).

approach has been unable to prevent citizens from countries such as Germany and France from travelling abroad to achieve their goal to build their family through surrogacy.17 In Australia, attempts by some states to prohibit intended parents from entering international commercial surrogacy arrangements have been seen as a “failed experiment”.18 In Ireland, where a Bill has been introduced to regulate surrogacy for the first time in that country,19 the reality of international commercial surrogacy has been recognised as a strong reason for preferring regulation of domestic surrogacy rather than prohibition.20 In reality, a prohibitive approach “has simply exported the issue to other jurisdictions with a more permissive approach”.21

• 1.19 A prohibitive approach has other problems. Traditional surrogacy arrangements, where the surrogate uses her own ovum in conception, can take place privately without any official approval or medical involvement. Therefore, “[u]nless a state is prepared to police the bedrooms of the nation, surrogacy arrangements cannot be effectively outlawed, only driven underground”.22
• 1.20 For these reasons, our approach to this review is not to re-examine whether surrogacy should be permitted in Aotearoa New Zealand but rather to ensure surrogacy is regulated in a way that meets the needs and reasonable expectations of New Zealanders and 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?

• 1.21 Another key debate in the regulation of surrogacy is whether it should be available only on an altruistic basis (where the surrogate does not receive any payment other than for reasonable expenses incurred) or whether commercial surrogacy should be permitted.
• 1.22 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.

¹⁷ 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 577.

¹⁸ 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].

¹⁹ An Bille Sláinte (Atáirgeadh Daonna Cuidithe) | Health (Assisted Human Reproduction) Bill 2022 (29) (Ireland).

²⁰ 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.

²¹ 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 567.

²² 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].

• 1.23 Commercial surrogacy is currently prohibited in Aotearoa New Zealand and in many other countries, including Australia, England, Wales, Scotland and Canada. Under the HART Act, the exchange of “valuable consideration” for a person’s participation in a surrogacy arrangement is an offence23 and all forms of surrogacy arrangement are unenforceable.24 Intermediaries cannot receive valuable consideration for arranging a person’s participation in a surrogacy arrangement,25 and advertising in relation to surrogacy arrangements is also restricted.26
• 1.24 Few jurisdictions allow commercial surrogacy. Those that do include some states in the United States as well as Ukraine, Georgia and Russia.27 Some jurisdictions, such as India, have previously permitted commercial surrogacy but have since moved to prohibit or restrict the practice in response to emerging concerns.28
• 1.25 Commercial surrogacy is typically opposed on the grounds that it is inherently exploitative and commodifies women and children.29 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 (see Chapter 3).30 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.31 Others also suggest that prohibiting commercial surrogacy can in fact create conditions for exploitation of women because it prevents surrogates from being treated fairly.32
• 1.26 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

²³ Human Assisted Reproductive Technology Act 2004, s 14(3).

²⁴ Human Assisted Reproductive Technology Act 2004, s 14(1). See definition of surrogacy at [1.14], n 13 above.

²⁵ Human Assisted Reproductive Technology Act 2004, s 14(3).

²⁶ Human Assisted Reproductive Technology Act 2004, ss 14(3) and 15(1).

²⁷ But see “Russia’s liberal surrogacy rules are under threat” The Economist (online ed, London, 18 March 2021); and Christina Weis “Russian State Duma proposes bill restricting surrogacy... again” BioNews (online ed, London, 15 March 2021).

²⁸ See for example Neeta Lal “India’s New Reproductive Laws Trigger Debate” The Diplomat (online ed, United States, 7 January 2022).

²⁹ 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.

³⁰ 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].

³¹ 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].

³² 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.

amongst altruistic and commercial models. 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.33 Conversely, commercial surrogacy arrangements may be motivated by altruism.34 For these reasons, relying on a rigid distinction between commercial and altruistic surrogacy can be unhelpful.35

• 1.27 Our approach in this review has been to examine each element of surrogacy law and regulation on its merits in accordance with the guiding principles we outline in Chapter 3. Our recommendations for reform in this Report, taken as a whole, affirm the prohibition of commercial surrogacy in Aotearoa New Zealand but make improvements to provide greater legal protections and certainty for surrogate-born children, surrogates and intended parents.

MATTERS ADDRESSED IN THIS REPORT

• 1.28 This Report makes 63 recommendations addressing a range of issues with existing surrogacy law, regulation and practice.
• 1.29 In developing these recommendations, we have recognised that change can be achieved in a variety of ways and that legislation is not an exclusive solution.36 We have also recognised that some issues raise broader policy questions and that recommending a legislative “fix” in the surrogacy context alone may be undesirable. In considering each issue, we have therefore considered:

(a) whether, instead of legislative reform, the issue could be addressed through operational changes, provision of clearer information to the public or greater education of professionals; and

(b) whether the issue reflects a broader policy problem that might benefit from separate examination.

• 1.30 Finally, we recognise that it is important when making law reform proposals to ensure, as far as practicable, that they do not have unintended consequences. Where we have not identified significant practical issues with the current law, the potential for introducing unintended consequences may weigh against proposing reform.
• 1.31 Following on from this chapter, this Report is organised as follows:

³³ 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.

³⁴ 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.

³⁵ 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].

³⁶ See Lord Toulson “Democracy, Law Reform and the Rule of Law” in Matthew Dyson, James Lee and Shona Wilson Stark (eds) Fifty Years of the Law Commissions: The Dynamics of Law Reform (Hart Publishing, Oxford, 2016) 127; David Ormerod “Reflections on the Courts and the Commission” in Matthew Dyson, James Lee and Shona Wilson Stark (eds) Fifty Years of the Law Commissions: The Dynamics of Law Reform (Hart Publishing, Oxford, 2016) 326; and Ellen France, Judge of the Supreme Court of New Zealand “Something of a Potpourri: A Judge’s Perspective on Law Reform” (address to Te Aka Matua o te Ture | Law Commission’s 30th Anniversary Symposium, Wellington, 3 November 2016).

(a) Chapter 2 examines New Zealanders’ participation in surrogacy in Aotearoa New Zealand and overseas and what we know about New Zealanders’ attitudes in relation to surrogacy. We look at empirical research on the impact of surrogacy on surrogate- born children, their families and surrogates. We also explore some aspects of te ao Māori and surrogacy.

(b) Chapter 3 explores the rights and interests that arise from tikanga Māori, te Tiriti o Waitangi | Treaty of Waitangi and human rights law. We outline our guiding principles for surrogacy law reform that underpin the recommendations for reform made in the following chapters.

(c) Chapter 4 considers the regulation of surrogacy arrangements in Aotearoa New Zealand and the case for retaining and extending the requirement for prior approval of surrogacy arrangements by the Ethics Committee on Assisted Reproductive Technology (ECART).

(d) Chapter 5 considers concerns with how the ECART approval process is working in practice and how its operation could be improved.

(e) Chapter 6 considers how legal parenthood should be determined in surrogacy arrangements.

(f) Chapter 7 focuses on children’s rights to identity and what information the state should preserve for surrogate-born people about their genetic and gestational origins and whakapapa.

(g) Chapter 8 addresses the financial support that should be available to surrogates in Aotearoa New Zealand.

(h) Chapter 9 examines international surrogacy and how international surrogacy arrangements should be provided for in New Zealand law.

(i) Chapter 10 addresses other problems New Zealanders face when trying to access surrogacy in Aotearoa New Zealand.

TERMINOLOGY AND OTHER MATTERS

• 1.32 This Report includes a glossary of key terms and abbreviations used throughout this Report. 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.
• 1.33 The terms “parentage” and “parenthood” are both used in legislation and commentary to denote a child’s parents. In this Report, we use the term “parenthood” for consistency with the Status of Children Act and the Adoption Act. However, in Chapter 6, we recommend introducing “parentage orders” to determine legal parenthood. This promotes consistency with the language adopted by the Hague Conference in its work on parentage and surrogacy, discussed above.
• 1.34 We use the term “surrogate-born child” throughout this Report. In some contexts, we also use the term “surrogate-born person” when discussing the life-long impact of surrogacy on surrogate-born people and future generations. This includes our discussion in Chapter 7 of the need to ensure that surrogate-born people can access information concerning their identity.

• 1.35 We use the term “parent” rather than “mother” or “father” throughout this Report except where it is necessary to do otherwise, for example, when referring to existing law, the facts of a particular situation or specific research findings.
• 1.36 When referring to the surrogate, we use the term “woman” and the pronouns she/her, consistent with the language of the HART Act. In doing so, we intend to include any person who can become pregnant. While surrogates predominantly identify as women, 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 agree to act as a surrogate. We also acknowledge that the practice of surrogacy directly engages women’s human rights and raises issues relating to structural inequalities women can face (see Chapter 3).
• 1.37 Many kupu Māori are not defined in the Report because their meanings are well understood in contemporary Aotearoa New Zealand. We have used simple in-text definitions for those kupu Māori that are less well known to assist readers with understanding their meaning in the specific context in which they are used. These definitions 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.
• 1.38 When we refer to submissions we received in consultation, we are referring to submissions received through the consultation website as well as submissions received directly on the Issues Paper. The consultation website comprised summaries of the topics covered in the Issues Paper alongside links to the relevant Issues Paper chapter, and the consultation questions asked on the consultation website mirror the questions asked in the Issues Paper.
• 1.39 When we refer to or summarise submissions received on the Issues Paper, we use the submitter’s language, with minor edits if needed for readability.
• 1.40 Te Kōti Whānau | Family Court decisions, including decisions under the Adoption Act, are subject to publication restrictions.37 To address this, we have replaced the names of parties with initials when it is not clear from the judgment or the judgment database38 that the decision has already been anonymised using fictitious names.

³⁷ Family Court Act 1980, ss 11B–11D.

³⁸ Judicial decisions from a representative sample of te Kōti-ā-Rohe | District Court cases are published at www.districtcourts.govt.nz.

CHAPTER 2

Surrogacy in practice

INTRODUCTION

• 2.1 In this chapter, we consider New Zealanders’ participation in surrogacy in Aotearoa New Zealand and overseas and what we know about New Zealanders’ attitudes in relation to surrogacy. We look at empirical research on the impact of surrogacy on surrogate-born children, their families and surrogates. We also explore some aspects of te ao Māori and surrogacy.

PARTICIPATION IN SURROGACY

• 2.2 Surrogacy arrangements come in different forms, but the uniting feature is the parties’ shared intention that the surrogate will become pregnant, carry and give birth to a child for the intended parents to raise.
• 2.3 Traditional surrogacy is where the surrogate’s ovum is used in conception. This means the surrogate is the child’s genetic and gestational mother. Pregnancy is usually achieved by artificial insemination, which can occur with or without the assistance of a fertility clinic. 1 The first known court cases relating to traditional surrogacy in Aotearoa New Zealand were in the 1990s,2 but traditional surrogacy has been practised in different cultures throughout history.3
• 2.4 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

¹ 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”: Ruth Walker and Liezl van Zyl “Surrogacy and the law: three perspectives” (2020) 10 NZFLJ 9 at 9.

² Re P (adoption: surrogacy) [1990] NZFLR 385 (DC); and Re G DC Invercargill Adopt 6/92, 3 February 1993. These were identified as the first two cases involving an application to adopt a child born through surrogacy in Anne Else “Surrogacy” in Sandra Coney and Anne Else (eds) Protecting our future: the case for greater regulation of assisted reproductive technology (Women’s Health Action Trust and New Zealand Law Foundation, 1999) 50 at 53.

³ 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 also the instance of traditional surrogacy in te ao Māori discussed at [2.52] below.

genetic connection to the intended parents or the surrogate. Because gestational surrogacy involves the use of IVF technology, it can only occur with the assistance of a fertility clinic.

• 2.5 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, Dianne Yates MP 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 (HART Act) became law.5
• 2.6 Since the 1990s, the use of surrogacy has increased in Aotearoa New Zealand, although it is difficult to know exactly how common surrogacy is for the reasons discussed below.

How common is surrogacy today?

• 2.7 There are several different sources of information relevant to the use of surrogacy in Aotearoa New Zealand. However, none of these sources provide a complete picture on the number of surrogacy arrangements entered or the number of children born as a result of a surrogacy arrangement. The lack of accurate information is not a problem specific to Aotearoa New Zealand. Similar issues have been identified in Australia and the United Kingdom,6 and the Hague Conference on Private International Law has observed that the number of international surrogacy arrangements entered globally is “impossible to determine”.7
• 2.8 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

• 2.9 As we explore in Chapter 4, 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 considered by ECART each year has increased. In 2020, ECART considered the highest-

⁴ 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.

⁵ Human Assisted Reproductive Technology Bill 1996 (195-1). A Government Bill was subsequently introduced, the 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: Human Assisted Reproductive Technology Bill 1996 (195-2) (select committee report) at 1.

⁶ 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.

⁷ 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.

ever number of surrogacy applications in a single year (37, compared to just 14 in 2005).8 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. On average, ECART has considered 23 surrogacy applications each year since 2010.9

• 2.10 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 2018, 18 children were born as a result of clinic-assisted surrogacy,10 up from 11 children in 2017.11 Surrogacy arrangements generally make up a very small proportion of assisted reproductive technology treatment cycles (0.7 per cent in 2018).12

Adoption data relating to domestic surrogacy

• 2.11 Another source of information relates to adoption applications. As we explain in Chapter 6, under the current law, the surrogate and her partner (if she has one) are the surrogate- born child’s legal parents at birth.13 The intended parents must adopt if they want to be recognised as the child’s legal parents.14 As part of the adoption process, a social worker from Oranga Tamariki | Ministry for Children must prepare a report for te Kōti Whānau | Family Court.15 Oranga Tamariki’s records show that, in 2021, 21 reports were written for adoption applications involving domestic surrogacy.16
• 2.12 Prior to July 2020, Oranga Tamariki did not distinguish between the different categories of social worker’s 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

⁸ These figures are based on the minutes from the meetings of the Ethics Committee on Assisted Reproductive Technology (ECART), which are available on ECART’s website <ecart.health.govt.nz>. The minutes describe the applications considered and the outcome of ECART’s consideration. At the time of writing, minutes were not available in respect of all meetings held in 2021. In meetings held between February and October 2021, ECART had considered 34 surrogacy applications.

⁹ Based on figures from 2010–2020.

¹⁰ Advisory Committee on Assisted Reproductive Technology Assisted Reproductive Technology in New Zealand 2018

(October 2021) at 4.

¹¹ Advisory Committee on Assisted Reproductive Technology Assisted Reproductive Technology in New Zealand 2017

(March 2021) at 4.

¹² Advisory Committee on Assisted Reproductive Technology Assisted Reproductive Technology in New Zealand 2018

(October 2021) at 4.

¹³ 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.

¹⁴ Alternatives to legal parenthood when the intended parents do not adopt the surrogate-born child are discussed in Chapter 5.

¹⁵ Adoption Act 1955, s 10.

¹⁶ Email from Oranga Tamariki | Ministry for Children to Te Aka Matua o te Ture | Law Commission regarding domestic and international surrogacy data (1 March 2022). We note, however, that the provision of a social worker’s report does not necessarily equate to the making of an adoption order.

domestic surrogacy in that time.17 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 2013–2018.18

• 2.13 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:19

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.

• 2.14 It is unclear whether the practice of intended parents caring for and raising a surrogate- born child without formalising their parental status through adoption continues today. In 2017, Associate Professor Debra Wilson observed that anecdotal evidence suggests a “significant disparity” between the number of surrogate-born children in Aotearoa New Zealand and the number that have a legally recognised relationship with the people they call their parents.20 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.21 Wilson has identified three possible reasons why intended parents might not apply for an adoption order.22 First, some intended parents might not be aware that they need to adopt their child in order to become the legal parents. Second, other intended parents may object in principle to the idea they must adopt their own child, especially if the child is their genetic child. Third, some intended parents who have had a child through a commercial surrogacy arrangement may be deterred by the criminal sanctions on commercial surrogacy from publicising the circumstances of the child’s birth. In some cases, the availability of parenting and guardianship orders under the Care of Children Act 2004 may be considered sufficient.23 The practice of whāngai within te ao Māori also means there are

¹⁷ 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).

¹⁸ 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>.

¹⁹ 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.

²⁰ 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.

²¹ 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.

²² 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.

²³ See for example the case of KMT v RAB [2011] NZFLR 190 (FC). Prior to the child’s birth, the biological mother, KMT, promised her friend, LJB, that she would give her the child to bring up as her child. Subsequently, the child had been in LJB and RAB’s care since a few hours after her birth, and a parenting order had been made in favour of LJB and RAB. KMT then applied to discharge the order and sought an order for day-to-day care. The Court refused, preferring for existing arrangements to continue where the biological parents had contact with the child.

likely to be surrogate-born children who are not legally adopted because establishing a whāngai relationship is seen as sufficient.24

• 2.15 However, increasing understanding of the current law (driven in part through media coverage and the growth of online surrogacy support forums) alongside increasing social acceptance of surrogacy as a method of family formation likely means that most intended parents now do formalise their parental status through adoption. In its submission on the Issues Paper, Te Kāhui Ture o Aotearoa | New Zealand Law Society observed that it has seen no evidence in practice of the current adoption pathway deterring parents from formalising their parental status, and there were no reports of parents refusing to engage with the adoption pathway because they object on principle to the process. It is, however, impossible to know whether there are instances of traditional surrogacy arrangements that proceed without any lawyer involvement. It is also likely that some whāngai arrangements proceed without adoption under state law.

Prevalence of international surrogacy arrangements

• 2.16 Oranga Tamariki’s records show that, in 2021, it completed 14 reports for adoption applications involving international surrogacy.25 This is down on previous years, which may be due to the ongoing impacts of the Covid-19 pandemic. Between 2016 and 2021, Oranga Tamariki completed reports for 96 international surrogacy arrangements.26 Table 1 below sets out the countries where New Zealand intended parents entered international surrogacy arrangements. It demonstrates that most international surrogacies are arranged in the United States (61 per cent), with most of these taking place in California.27 Destinations outside the United States tend to be in Asia or Eastern Europe.

²⁴ In the comments made on the Issues Paper by the Judges of the Family Court, the Judges observed that informal surrogacy arrangements are common among Māori within whānau and friendship groups to address female infertility or childlessness within same-sex relationships and that these are often formalised by applications under the Care of Children Act 2004.

²⁵ Email from Oranga Tamariki | Ministry for Children to Te Aka Matua o te Ture | Law Commission regarding domestic and international surrogacy data (1 March 2022). Oranga Tamariki received 21 referrals in 2021 for international surrogacy, but some of these were still in progress at the time of writing.

²⁶ Email from Oranga Tamariki | Ministry for Children to Te Aka Matua o te Ture | Law Commission regarding domestic and international surrogacy data (1 March 2022); and 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).

²⁷ 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).

• 2.17 Most of the international surrogacy arrangements over the past six years involved the use of donated gametes (79 out of 98),28 and in just under half (48), the gamete donor was anonymous.29
• 2.18 This data may not capture all international surrogacy arrangements. When a child is born overseas, the New Zealand Government is reliant on the information disclosed to it. Some intended parents may not disclose that their child was 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 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.30 Of course, single men and male couples

²⁸ This figure includes the 96 reports completed for adoption applications involving international surrogacy noted above and an additional 2 referals received in 2021 that are still in progress but for which the genetic makeup of the child is known.

²⁹ 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.

³⁰ 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.

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 uses surrogacy?

• 2.19 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 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 often no history of failed fertility treatment. Rather, surrogacy provides an opportunity to have a child that is the genetic child of an intended parent. People in this group will usually need an ovum donor or will seek to have a child by traditional surrogacy, although some trans men may have fertility preservation treatment to collect and freeze ova prior to gender-affirming medical care (discussed below).

• 2.20 An emerging third group comprises 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.
• 2.21 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.31 ECART, in its submission on the Issues Paper in 2021, estimated there was a 50/50 split in the previous year between close family or friends and women previously unknown to the intended parents entering into surrogacy arrangements that go through the ECART process.

What is driving the increase in surrogacy?

• 2.22 As we observed in the Issues Paper, 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 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.32 In 2015, the Family Court recognised for the first time that a male couple could legally adopt their

³¹ 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.

³² Te Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at [7.6].

surrogate-born children.33 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.34 This is a trend that is also evident in the United Kingdom.35

(b) Declining rates of adoption. Rates of domestic and intercountry adoption are declining as fewer children are in need of adoption.36 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.37 As the age of women giving birth increases, so do the rates of infertility and demand for fertility treatment.38 Decreasing fertility for both men and women is a global trend and is likely to continue in future.39

(d) Advances in assisted reproductive technology. Ongoing improvements to assisted reproductive technology mean higher success rates for fertility treatment.40 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. Women are increasingly undergoing fertility preservation treatment such as ovum extraction and freezing.41 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 medical care that could affect their fertility.42 The increased

³³ Re Pierney [2015] NZFC 9404, [2016] NZFLR 53 at [14]–[15].

³⁴ Interview with Andrew Murray, Medical Director, Fertility Associates (Kathryn Ryan, Nine to Noon, RNZ, 30 March 2021).

³⁵ 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].

³⁶ Tāhū o te Ture | Ministry of Justice observes that 125 adoptions were granted by te Kōti Whānau | 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).

³⁷ 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.

³⁸ Growth of the fertility services market in Aotearoa New Zealand is predicted for these reasons: Report Ocean “Australia & New Zealand Fertility Services Market Size, Key Players Analysis, Competitive Scenario, Opportunities, Development Status 2021–2030” (press release, 15 March 2022).

³⁹ Zoë Corbyn “Interview — Shanna Swan: ‘Most couples may have to use assisted reproduction by 2045’” The Guardian

(online ed, London, 28 March 2021).

⁴⁰ See for example Paul R Brezina and others “Recent Advances in Assisted Reproductive Technology” (2012) 1 Current Obstetrics and Gynecology Reports 166.

⁴¹ Molly Johnston and others “A major increase in oocyte cryopreservation cycles in the USA, Australia and New Zealand since 2010 is highlighted by younger women but a need for standardized data collection” (2021) 36 Human Reproduction 624.

⁴² See for example Hauora Tāhine | Pathways to Transgender Healthcare Services “Gender Affirming Medical Care” (2 March 2022) Healthpoint <www.healthpoint.co.nz>; and Jeannie Oliphant and others Guidelines for Gender Affirming Healthcare for Gender Diverse and Transgender Children, Young People and Adults in Aotearoa New Zealand (Transgender Health Research Lab, Te Whare Wānanga o Waikato | University of Waikato, October 2018) at 28–29.

demand for fertility preservation is likely to result in an increased demand for surrogacy in future as people seek to build families using their frozen gametes or embryos but are unable to carry a child themselves.

• 2.23 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.
• 2.24 The increasing use of international surrogacy by New Zealanders appears to be driven by a range of factors, including the following:

(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. Intended parents must instead rely on their own family and friend networks or use social media or online forums to find a surrogate. 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 and uncertainty about advertising and payments to surrogates are likely to contribute to these challenges. While people are increasingly seeking out a surrogate through social media and online forums, some may feel uncomfortable publicising their private lives in such a way. We explore these issues in Chapters 8 and 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 entered into by New Zealanders (79 out of 98 arrangements over the past six years) involved 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, record the arrangement in a contract that may be enforceable 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 transfers43 and gender selection44 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

⁴³ 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].

⁴⁴ Human Assisted Reproductive Technology Act 2004, s 11.

at the same time.45 While this is not technically prohibited in Aotearoa New Zealand, such an arrangement is unlikely to satisfy the requirements for ECART approval.46

(e) Increasing cultural diversity in Aotearoa New Zealand. Cultural diversity driven by historically high levels of migration means that many New Zealanders have links to two or more countries. In the context of surrogacy, intended parents may choose to have a child in another 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.

Māori participation in surrogacy

• 2.25 Available information on ethnicity of participants in surrogacy arrangements is limited.47 The most recent available research (relating to 2005–2010) suggests that, despite the general increase in the use of surrogacy, Māori participation in surrogacy arrangements is low, and Māori women are more likely to act as surrogates than as intended parents.48
• 2.26 Dr Annabel Ahuriri-Driscoll has observed that, while the exact reasons for low participation of Māori in surrogacy arrangements are unknown, causes may include:49

(a) high fertility rates (historically) reducing the need for surrogacy;

(b) preference for the customary practice of whāngai;

(c) the difficulty involved with finding a surrogate; and

(d) the cost of IVF inhibiting Māori from participating in gestational surrogacy as intended parents.

• 2.27 A three-year study of fertility and infertility from a Māori perspective (conducted between 2007 and 2010) also found that whāngai was viewed as a cultural alternative to

⁴⁵ 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>.

⁴⁶ 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)].

⁴⁷ Ethnicity data is collected by fertility clinics under applicable health information standards, but it is not routinely published: Donna Cormack “He Kākano: Māori Views and Experiences of Fertility, Reproduction and Assisted Reproductive Technology — A Review of Epidemiological and Statistical Data” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 41 at 93. See Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 at [2.5.1]; and Manatū Hauora | Ministry of Health “Sector Guidance for Ngā Paerewa Health and Disability Services Standard NZS 8134:2021” (18 October 2021) <www.health.govt.nz> at [2.5.1].

⁴⁸ A study of 104 applications considered by ECART between September 2005 and December 2010 found that only 9 per cent of applications involved a Māori surrogate and only 2 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, 2 per cent had partners who were Māori: 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.

⁴⁹ 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).

undertaking fertility treatment.50 Other reasons for low Māori participation in fertility services were also suggested, including the distribution of Māori geographically throughout Aotearoa New Zealand affecting access to reproductive and fertility services,51 a longer duration of infertility before referral for treatment among Māori52 and fertility clinics not being well equipped to deal with whānau Māori.53

• 2.28 Research published in 2021 found that, while Māori and Pacific peoples have higher total fertility rates than European and Asian populations, this does not translate to lower infertility levels in Māori and Pacific women.54 Rather, infertility rates for Māori are similar to those experienced by non-Māori (and infertility rates of Pacific peoples are higher).55 That research also found that Māori and Pacific peoples are less likely to seek fertility treatment.56 For Māori women in particular, ethnicity differences remained after accounting for age and household income, suggesting that “factors other than economic disadvantage” could be preventing Māori women from seeking fertility treatment. 57 The research noted that institutional racism has been shown to increase barriers to infertility services for Māori and Pacific women, such as the body mass index requirements to access public funding.58

NEW ZEALANDERS’ CHANGING ATTITUDES TO SURROGACY

• 2.29 Surrogacy is increasingly becoming an accepted way to build a family in Aotearoa New Zealand. 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 that was published to promote and inform public debate on the issues raised by new reproductive methods, just 38 per cent of submissions commenting on surrogacy supported the practice, while 45 per cent opposed it.59

⁵⁰ Leonie Pihama “Experiences of Whānau Māori within Fertility Clinics” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 203 at 234.

⁵¹ Donna Cormack “He Kākano: Māori Views and Experiences of Fertility, Reproduction and Assisted Reproductive Technology — A Review of Epidemiological and Statistical Data” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 41 at 50.

⁵² Donna Cormack “He Kākano: Māori Views and Experiences of Fertility, Reproduction and Assisted Reproductive Technology — A Review of Epidemiological and Statistical Data” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 41 at 88 and 93.

⁵³ Leonie Pihama “Experiences of Whānau Māori within Fertility Clinics” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 203 at 234.

⁵⁴ Antoinette Righarts and others “The burden of infertility in New Zealand: A baseline survey of prevalence and service use” (2021) 61 ANZJOG 439 at 446.

⁵⁵ Antoinette Righarts and others “The burden of infertility in New Zealand: A baseline survey of prevalence and service use” (2021) 61 ANZJOG 439 at 443.

⁵⁶ The study found that 70 per cent of men and women sought help for infertility, compared to 46.5 per cent of Māori women and 39.8 per cent of Pacific women: Antoinette Righarts and others “The burden of infertility in New Zealand: A baseline survey of prevalence and service use” (2021) 61 ANZJOG 439 at 446.

⁵⁷ Antoinette Righarts and others “The burden of infertility in New Zealand: A baseline survey of prevalence and service use” (2021) 61 ANZJOG 439 at 446.

⁵⁸ Antoinette Righarts and others “The burden of infertility in New Zealand: A baseline survey of prevalence and service use” (2021) 61 ANZJOG 439 at 446.

⁵⁹ Law Reform Division New Birth Technologies: A summary of submissions received on the issues paper (Department of Justice, 1986) at 31–32. See discussion in Ken Daniels and Katrina Hargreaves “The Policy and Ethics of Surrogacy in New Zealand: Who is Left Holding the Baby?” (1997) 6 Otago Bioethics Report 1 at 2.

• 2.30 During consultation, we received a submission from a parent who had a child through surrogacy over 30 years ago. That submitter explained that, back then, surrogacy took place but was forced underground. They did not start the adoption process for several years for fear that the child would be taken off them.
• 2.31 Aotearoa New Zealand did not have any formal policy or legislation in place to regulate surrogacy until the HART Act was enacted in 2004. The HART Act was heralded as “catch-up” legislation60 that reflected changing social understandings of family formation in Aotearoa New Zealand.61
• 2.32 A survey of public attitudes on surrogacy conducted by Te Whare Wānanga o Waitaha | University of Canterbury in 2017–2018 (the Surrogacy Survey) reveals how, since the enactment of the HART Act, surrogacy has become embedded in New Zealand society as a legitimate method of family formation.62
• 2.33 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).63 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.64
• 2.34 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.65 Only a small proportion (eight per cent) said no, and 25 per cent were unsure or preferred not to say.
• 2.35 The results of the Surrogacy Survey are consistent with the feedback we received on the Issues Paper. As we explain in Chapter 1, of the 223 submissions we received in consultation, just 30 (13 per cent) were opposed to surrogacy in all forms.

⁶⁰ M Legge, R Fitzgerald and N Frank “A retrospective study of New Zealand case law involving assisted reproduction technology and the social recognition of ‘new’ family” (2007) 22 Human Reproduction 17 at 17.

⁶¹ M Legge, R Fitzgerald and N Frank “A retrospective study of New Zealand case law involving assisted reproduction technology and the social recognition of ‘new’ family” (2007) 22 Human Reproduction 17 at 18. As Daniels and Hargreaves explained, “issues do not usually become the target of state intervention until they have been established as areas of legitimate social concern”: Ken Daniels and Katrina Hargreaves “The Policy and Ethics of Surrogacy in New Zealand: Who is Left Holding the Baby?” (1997) 6 Otago Bioethics Report 1 at 4.

⁶² The Surrogacy Survey was conducted by Te Whare Wānanga o Waitaha | University of Canterbury as part of a 3-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. Just 5 per cent of respondents identified as Māori, which is perhaps attributable to using only the General Electoral Roll and not also the Māori Electoral Roll for selecting participants. 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.

⁶³ 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.

⁶⁴ 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.

⁶⁵ 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.

• 2.36 Two recent petitions calling for changes to different aspects of Aotearoa New Zealand’s surrogacy laws66 and the enactment of the Paige Harris Birth Registration Act 2022 with unanimous support of the House67 also indicate growing social acceptance and support for surrogacy in Aotearoa New Zealand.

EMPIRICAL RESEARCH ON THE IMPACT OF SURROGACY

• 2.37 There is a growing body of empirical research that demonstrates largely positive outcomes for surrogates, surrogate-born children and their families. This research is mostly from the United Kingdom. Of particular note is the University of Cambridge’s longitudinal study of assisted reproduction families, which has been running since 2000 (the Cambridge Study).68 However, several smaller qualitative studies have examined experiences of surrogates and intended parents in Aotearoa New Zealand.69 We have drawn on the findings of these studies throughout our review.

Outcomes for surrogates

• 2.38 Research on the impact of surrogacy on women who act as surrogates suggests that surrogacy is generally a positive experience for surrogates.70
• 2.39 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 the relationship between surrogates who

⁶⁶ 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), which received 32,239 signatures and called for changes to Aotearoa New Zealand’s surrogacy and adoption laws; and Petition of Josh Johnson “Let Paige Have Her Mum’s Name on her Birth Certificate (Instead of “Not Recorded”)” (2021, Change.org), which had received over 55,000 signatures at the time of writing.

⁶⁷ Discussed in Chapter 6 of this Report.

⁶⁸ 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.

⁶⁹ See Hannah Gibson “Kin-making in the Reproductive Penumbra: Surrogacy in Aotearoa New Zealand” (PhD Dissertation, Te Herenga Waka | Victoria University of Wellington, 2021); Hannah Gibson ““Doing it Our Way” Participation and Kinship in Traditional Surrogacy Narratives in Aotearoa New Zealand” (2021) 8 Medicine Anthropology Theory 1. This research involved ethnographic fieldwork carried out between 2016 and 2019. Gibson followed 25 intended parents and 20 surrogates. Of these participants, just 2 surrogates identified as Māori. See also Rhonda M

Shaw “Should Surrogate Pregnancy Arrangements be Enforceable in Aotearoa New Zealand?” (2020) 16 Policy Quarterly 18 at 21; and Rhonda Shaw “Rethinking Reproductive Gifts as Body Projects” (2008) 42 Sociology 11. Participants in Shaw’s research identified as NZ/European or Pākehā. See also Ruth Walker and Liezl van Zyl “Fear and Uncertainty: The Surrogacy Triad’s Experience of Social Workers’ Role Ambiguity” (2021) 51 British Journal of Social Work 2982. An ethnicity breakdown of participants in van Zyl and Walker’s research is not provided.

⁷⁰ 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.

knew the intended parents beforehand and surrogates who did not.71 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.72 While some surrogates did experience difficulties following the birth, these “were not severe, tended to be short- lived, and to dissipate with time”.73

• 2.40 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.74
• 2.41 The Cambridge Study also compared the impact of surrogacy on surrogates in traditional and gestational surrogacy arrangements. Although it may be assumed that a traditional surrogate who is the child’s genetic mother would be more likely to feel a special bond towards the child, this was not the case.75 In fact, 10 years on, gestational surrogates were more likely than traditional surrogates to feel a special bond to the child.76 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.77
• 2.42 Recent research in Canada involving 184 gestational surrogates resulted in similar findings, with most participants reporting their surrogacy participation was life transformative and empowering.78
• 2.43 In Aotearoa New Zealand, anthropologist Dr Hannah Gibson’s three-year research project examined the experiences of traditional and gestational surrogates and intended parents.79 Gibson found that surrogacy is generally a fulfilling experience for surrogates, even though at times it can feel unsatisfactory.80 Gibson argued that surrogacy itself is not inherently exploitative but did not deny that exploitation exists in some spaces, as

⁷¹ Vasanti Jadva and others “Surrogacy: the experiences of surrogate mothers” (2003) 18 Human Reproduction 2196 at 2203.

⁷² 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” (2021) 51 British Journal of Social Work 2982 at 2989.

⁷³ Vasanti Jadva and others “Surrogacy: the experiences of surrogate mothers” (2003) 18 Human Reproduction 2196 at 2203.

⁷⁴ 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.

⁷⁵ Vasanti Jadva and others “Surrogacy: the experiences of surrogate mothers” (2003) 18 Human Reproduction 2196 at 2203.

⁷⁶ 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.

⁷⁷ 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.

⁷⁸ Samantha Yee, Shilini Hemalal and Clifford L Librach ““Not my child to give away”: A qualitative analysis of gestational surrogates’ experiences” (2020) 33 Women and Birth 256.

⁷⁹ Hannah Gibson “Kin-making in the Reproductive Penumbra: Surrogacy in Aotearoa New Zealand” (PhD Dissertation, Te Herenga Waka | Victoria University of Wellington, 2021); and Hannah Gibson ““Doing it Our Way” Participation and Kinship in Traditional Surrogacy Narratives in Aotearoa New Zealand” (2021) 8 Medicine Anthropology Theory 1.

⁸⁰ Hannah Gibson “Kin-making in the Reproductive Penumbra: Surrogacy in Aotearoa New Zealand” (PhD Dissertation, Te Herenga Waka | Victoria University of Wellington, 2021) at 194.

was illustrated in some narratives of the times where surrogates felt used and underappreciated by the intended parents.81

Outcomes for surrogate-born children and their families

• 2.44 The Cambridge Study suggests that families with surrogate-born children are just as likely to flourish as traditional families and sometimes more so.82 That study found that:83

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 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.

• 2.45 These findings are consistent with other studies in relation to the impact of surrogacy on surrogate-born children in the United States. One study of 40 male couples with surrogate-born children found that children showed high levels of psychological adjustment and positive relationships with their parents.84 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”.85
• 2.46 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.86 Although the number of adolescents who had no contact with their surrogate was small, researchers suggested that this indicates some surrogate-

⁸¹ Hannah Gibson “Kin-making in the Reproductive Penumbra: Surrogacy in Aotearoa New Zealand” (PhD Dissertation, Te Herenga Waka | Victoria University of Wellington, 2021) at 196.

⁸² Susan Golombok “The psychological wellbeing of ART children: what have we learned from 40 years of research” (2020) RBMO 743 at 743.

⁸³ 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).

⁸⁴ Susan Golombok and others “Parenting and the Adjustment of Children Born to Gay Fathers Through Surrogacy” (2018) 89 Child Dev 1223 at 1231.

⁸⁵ 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.

⁸⁶ At age 14, of the 8 adolescents who had no contact with their surrogate, 5 were interested in them and 3 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.

born children may have questions about their surrogate in the future or may express a desire to meet her.87

LIMITATIONS OF THE RESEARCH

• 2.47 While the findings summarised above support the ongoing practice of surrogacy, it is important to acknowledge that research in this area is limited in several key respects:

(a) First, there is limited research about Māori participation in and perspectives on surrogacy. While there are a small number of qualitative studies examining the impact of surrogacy in Aotearoa New Zealand, these studies either did not identify Māori participants or did not provide a comprehensive ao Māori view. While some research has examined fertility and infertility from a Māori perspective,88 research to better understand surrogacy in particular within te ao Māori is required, as discussed below.

(b) Second, available empirical research is typically limited by relatively small sample sizes. This means that the research cannot be said to capture the full spectrum of 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.

(c) Third, there is limited information about the life-long impacts on surrogate-born people. While the Cambridge Study has looked at the impact of surrogacy on adolescent children, it might be decades before the long-term implications of surrogacy can be fairly considered.89 We note, however, that the experiences of surrogate-born people informed the development of the International Principles for Donor Conception and Surrogacy (see Chapter 3)90 and that, in some respects, lessons can be learned from research examining the experiences of donor-conceived and adopted people. We discuss this research where relevant throughout this Report.

(d) Fourth, 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.91 The researchers involved in the Cambridge Study noted that the children “spoke of the surrogate’s altruistic

⁸⁷ 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.

⁸⁸ The findings of a 3-year study that involved interviews with 74 people (the majority being Māori) were published in what was described as “the first book that looks at the issues of fertility and infertility from a Māori or indigenous perspective”: Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) at xiii.

⁸⁹ 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.

⁹⁰ International Principles for Donor Conception and Surrogacy (November 2019). 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).

⁹¹ Some research on international and commercial surrogacy is emerging. See for example Amrita Pande Wombs in Labor: Transnational Commercial Surrogacy in India (Columbia University Press, New York, 2014), which investigated the outcomes for surrogates in India; and Vasanti Jadva “Parents’ relationship with their surrogate in cross-border and domestic surrogacy arrangements: comparisons by sexual orientation and location” (2019) 111 Fertility and Sterility 562, which compared UK-based intended parents’ relationships with their surrogate in domestic and international surrogacy arrangements.

motivations for helping their parents, which raises questions about how children will feel in situations where their surrogate mothers [were] reimbursed financially”.92 The International Principles for Donor Conception and Surrogacy also suggest that some surrogate-born people do feel different about commercial surrogacy:93

Many feel that they are the products of an international industry in human eggs, sperm, embryos and wombs which profits from human life — their lives. Yet as of this writing there is no jurisdiction in the world that fully protects the human rights of donor-conceived or surrogacy-born people despite all UN Member States having signed, and all but one having ratified, the [United Nations Convention on the Rights of the Child].

• 2.48 These limitations suggest a cautious approach to regulation is required to protect and promote the rights and interests of surrogate-born children, surrogates and intended parents, including as understood in te ao Māori.

TE AO MĀORI AND SURROGACY

• 2.49 In the Issues Paper, we drew on research and initial engagement with individuals who shared an ao Māori perspective to describe aspects of te ao Māori and tikanga Māori that may be relevant to surrogacy. We explained the special significance in te ao Māori of the ability of wāhine Māori to give birth. This is evident from Māori cosmology and ngā kōrero tuku iho (narratives passed down by Māori through oral tradition), the role of wāhine Māori in continuing whakapapa and examples in whakatauākī, whakataukī and te reo Māori that indicate this significance.94 We also outlined some of the tikanga around conception, pregnancy and birth.95
• 2.50 We considered what may influence Māori perspectives on surrogacy. As explained above, there is limited research about Māori perspectives on surrogacy. However, we observed that there is a long history of Māori openness and acceptance of gender and sexual diversity.96 We mentioned an example where, 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 several children through surrogacy with the same

⁹² 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. Surrogate-born people also spoke of the surrogate’s altruistic motivations in Aasma Day “We were born through surrogacy and couldn’t be happier. If it’s done openly and honestly, it’s wonderful” inews (online ed, London, 15 March 2022).

⁹³ International Principles for Donor Conception and Surrogacy (November 2019). See also 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>.

⁹⁴ Te Aka Matua o te Ture | Law Commission Review of Surrogacy | Te Kōpū Whāngai: He Arotake (NZLC IP47, 2021) at [4.4]–[4.16].

⁹⁵ Te Aka Matua o te Ture | Law Commission Review of Surrogacy | Te Kōpū Whāngai: He Arotake (NZLC IP47, 2021) at [4.17]–[4.20].

⁹⁶ Te Aka Matua o te Ture | Law Commission Review of Surrogacy | Te Kōpū Whāngai: He Arotake (NZLC IP47, 2021) at [4.33]–[4.35]. See also Cherryl Smith “Tamaiti Whāngai and Fertility” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 143 at 196.

Māori genetics.97 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 2020.98

• 2.51 We also explained that events in Māori tradition can help frame a Māori response to a new matter99 and that there appears to be some precedent for surrogacy in te ao Māori.100 During this review, one Māori academic 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.101
• 2.52 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 resulting 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.102
• 2.53 In the Issues Paper, we observed that our research and preliminary engagement suggested that Māori are generally positive about surrogacy, particularly as a means of continuing whakapapa in response to infertility. One kuia we spoke with said “the main thing is the tamariki ... it does not matter how they get here”.
• 2.54 We said that the perspectives held by Māori may also be influenced by the extent of their engagement with te ao Māori. Engagement varies due to a range of factors, including the impact of colonisation and the advent and influence of Western notions of religion. However, as one Māori academic explained to us during this review:

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.

• 2.55 Responses to the Issues Paper103 affirmed that individual Māori hold varying attitudes to surrogacy. A small number of personal submitters who identified as Māori opposed all

⁹⁷ Katarina Williams “Gay couple in Australia seeking Māori woman’s donor eggs” Stuff (online ed, New Zealand, 4 July 2017).

⁹⁸ Katarina Williams “Same sex couple’s baby joy following Māori egg donor classified ad” Stuff (online ed, New Zealand, 3 June 2020).

⁹⁹ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 375.

¹⁰⁰ See for example Cherryl Smith “Tamaiti Whāngai and Fertility” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 143 at 198.

¹⁰¹ See Karaitiana Taiuru “Te Rūnaka o Koukourarata: Genetics/DNA Position/Discussion Paper” (paper presented to SING 2021 ki Ōtautahi ki Rehua Marae).

¹⁰² See also the story told of an aunty who agreed to have a baby for her sister in Cherryl Smith “Tamaiti Whāngai and Fertility” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 143 at 155.

¹⁰³ We received 151 submissions that engaged with Māori and surrogacy (Chapter 4 of the Issues Paper), comprising 126 personal submissions, 20 submissions from organisations, comments from the Judges of the Family Court and 4 academic submissions. Of the 126 personal submissions, 15 (12 per cent) were from individuals who identified as Māori. One organisation submitter, Ngā Rangahautira, identified itself as a Māori organisation and another organisation submitter, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, noted that the Issues

Paper was reviewed by He Hono Wāhine, a subcommittee of the College that works to “improve health outcomes for wāhine Māori and their pēpi”. Te Hunga Rōia Māori o Aotearoa was unable to make a submission on the Issues Paper but shared with us its submission on Te Tāhū o te Ture | Ministry of Justice’s review of adoption laws: Te Hunga Rōia

forms of surrogacy, but most supported surrogacy in some form. One personal submitter had experience of surrogacy as an intended parent and explained that their lack of knowledge of te ao Māori and their own whakapapa limited their ability to engage with te ao Māori in the surrogacy context. Another personal submitter called for caution in looking for precedents for surrogacy in te ao Māori:

I do think we need to be careful, whāngai and concepts centring women as givers of life are core but very different to modern concepts of use of surrogates and other technology to facilitate having a child. Those concepts cannot be used to bolster this, rather it needs to stand on its own.

Tikanga Māori and surrogacy

• 2.56 The modern practice of surrogacy requires tikanga Māori to respond to new circumstances. For example, how might tikanga respond where a gestational surrogate carries and gives birth to a child to whom they have no genetic connection or where a wāhine Māori acts as a traditional surrogate and the resulting child is then raised outside of the surrogate’s whānau or hapū? What if one or both intended parents are Māori but the child’s genetic parents are not?
• 2.57 In this section, we consider some principles in tikanga Māori and how they might apply in the context of surrogacy. In doing so, we are not aware of deliberative discussions among Māori on how tikanga is engaged by the modern practice of surrogacy,104 nor have we had detailed comments about tikanga Māori and surrogacy from submitters in this review. Nonetheless, tikanga principles provide important context given the kaupapa of this review, which is the use of surrogacy in family building for New Zealanders otherwise unable to have a child.
• 2.58 One Māori academic who shared an ao Māori perspective on surrogacy with us during this review explained that “it all depends on the kaupapa, the purpose or aim and aroha ki te tangata involved”. They further explained:

The precedent to look for is not, was there a method or a protocol or process that was used that sets a precedent, but rather did the kaupapa (purpose or aim of the act) exist? That is, were there ever Māori who found themselves infertile and unpleased with this they sought and found a solution? Well yes, of course there were. That is the precedent of import. He aha te kaupapa? Is the kaupapa tika? Of course, it was and still is.

• 2.59 Whānau is central to the kaupapa of surrogacy. Whānau, which can be understood as household units or large extended families, are the basic building blocks of the social

Māori o Aotearoa Ngā tāpaetanga a Te Hunga Rōia Māori o Aotearoa | Submissions of Te Hunga Rōia Māori o Aotearoa to Adoption Reform Committee (6 September 2021).

¹⁰⁴ As acknowledged in Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 367. See also Jacinta Ruru “Kua tutū te puehu, kia mau: Māori aspirations and family law policy” in Mark Henaghan and Bill Atkin (eds) Family Law Policy in New Zealand (5th ed, LexisNexis, Wellington, 2020) 57 at 75; and 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) at 9. We acknowledge, however, the contribution of the 3-year study of fertility and infertility from a Māori perspective, the results of which are published and discussed in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012).

system in te ao Māori.105 Whānau can also mean to “be born”.106 Whanaungatanga, which we discuss further below, is about the importance of kin relationships. The significance in te ao Māori of creating new life, bringing a child into its whānau and therefore hapū and iwi, is clear.

• 2.60 One Māori academic who shared an ao Māori perspective with us suggested that surrogacy might be considered as a modern development of whānau, given that whānau is already an inclusive dynamic concept and can easily adapt to include surrogacy. This is consistent with a general understanding that tikanga is dynamic and has evolved over time to adapt to and accommodate developments in society and technology.107
• 2.61 Nonetheless, certain principles of tikanga are fundamental. As Dr Te Kahautu Maxwell has explained:108

There are a number of core values that underpin tikanga: whanaungatanga; mana; tapu; manaakitanga; and aroha. There are iwi variations of the core values, and therefore the above list is how I understand tikanga and see tikanga to being. Therefore, these core values are not prescribed and may differ from iwi to iwi. These core values are like a whariki; a woven mat, they must go together for tikanga to stand up. You must understand the core values for you to understand tikanga, because it is these core values that instruct you how to behave in the correct manner, which is tikanga.

• 2.62 Further, Tā Hirini Moko Mead, in his consideration of the underlying principles and values of tikanga, emphasised tika and pono.109 He observed that the concept of tika, or being correct, is a base principle that applies to all tikanga and that, in making a judgement about correctness, the concept of pono should be considered. Pono means true or genuine in terms of the principles of Māoritanga.110
• 2.63 With these observations in mind, we suggest that the tikanga principles of whakapapa and whanaungatanga are of central importance to considering surrogacy from an ao Māori perspective.111 We also suggest that the tikanga principles of tapu, mana,

¹⁰⁵ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 224. See also the discussion of the diversity of whānau in Cherryl Smith “Tamaiti Whāngai and Fertility” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 143 at 200–201.

¹⁰⁶ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 224. As we explained in the Issues Paper, certain kupu Māori associated with pregnancy and childbirth have dual meanings, which illustrates the connections between pregnancy and childbirth and other matters of significance in te ao Māori. In addition to the dual meaning of whānau, whenua can mean “land” and “placenta”, and hapū can mean “pregnant” and “large kinship group”: Te Aka Matua o te Ture | Law Commission Review of Surrogacy | Te Kōpū Whāngai: He Arotake (NZLC IP47, 2021) at [4.16].

¹⁰⁷ Te Aka Matua o te Ture I Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 2–6.

¹⁰⁸ In expert evidence given in Re Reeder (Ngā Pōtiki Stage 1 — Te Tāhuna o Rangataua) [2021] NZHC 2726 at [48]. Dr Maxwell’s qualifications as an expert in mātauranga Māori and his evidence were not disputed: at [46]. See also the evidence of Moana Jackson as cited in Jacinta Ruru and Leo Watson “An Introduction to Māori land, Taonga and the Māori Land Court” (paper presented to Property Law Conference — Change, it’s inevitable!, Auckland, 28 June 2018) at 4, and referenced in Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Kura Whenua ka Rokohanga: Report on Claims about the Reform of Te Ture Whenua Māori Act 1993 (Wai 2478, 2016) at 17.

¹⁰⁹ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 29.

¹¹⁰ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 29.

¹¹¹ Ani Mikaere discussed the centrality of these concepts in considering guardianship, custody and access: Di Pitama, George Ririnui and Ani Mikaere Guardianship, Custody and Access: Māori Perspectives and Experiences (Te Manatū Ture | Ministry of Justice and Te Tari Kooti | Department for Courts, August 2002) at 19 and following. In the context of assisted reproductive technology, Carl Mika highlights as relevant the concepts of whakapapa, tapu, kaitaikitanga and

manaakitanga, kaitiakitanga and aroha are also likely to be relevant. We discuss these principles below. We do not suggest our description of this tikanga is comprehensive, nor do we purport to set out specific tikanga practices. We give this explanation to underpin our later references to tikanga in support of the recommendations we make in this Report.

Whakapapa and whanaungatanga

• 2.64 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.112 Whakapapa connects all things, animate and inanimate, positioning an individual not only within their kinship collective, but within the wider world and universe.
• 2.65 Ahuriri-Driscoll has suggested two things are transmitted in the creation of life — ira tangata, the human element or life principle, and whakapapa, the relationships and genealogical connections that build out from or upon this base.113 Ahuriri-Driscoll has observed that whānau are both the transmitters of ira tangata and, in terms of relationships and support structures, the embodiment of whakapapa.114 Mead described whakapapa as an attribute of identity that gives an individual the right to say “I am Māori”.115 Mead has also explored the spiritual aspects of identity that every Māori child is born with, including personal tapu, mana, mauri, wairua and hau.116 We discuss some of these aspects further below.
• 2.66 The continuity, values and practices of Māori societies began with whakapapa.117

Whakapapa is the:118

mauri: Carl Mika “A Review of the Law Relating to Assisted Reproductive Technology in New Zealand, and Its Implications for Māori: Application to Other Areas of Law” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 101 at 135–137.

¹¹² 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.

¹¹³ 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) at 1.

¹¹⁴ 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) at 2.

¹¹⁵ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 47.

¹¹⁶ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 49–67.

¹¹⁷ Lyn Waymouth “The Bureaucratisation of Genealogy” (2003) 6 Ethnologies Comparées 1 at 3 as cited in Bevan Tipene- Matua and Mark Henaghan “Māori Perspectives on Pre-Birth Genetic Testing with Particular Focus on PGD” in Human Genome Research Project Choosing Genes for Future Children: Regulating Preimplantation Genetic Diagnosis (Te

Whare Wānanga o Ōtākou | University of Otago, Dunedin, 2006) 69 at 75. Parts A and B of this chapter (pp 73–95)

were written by Bevan Tipene-Matua and Victoria Guyatt. Part C of this chapter (pp 96–110) was written by Danny Tuato’o. Part D of this chapter (pp 111–136) was written by Sacha McMeeking.

¹¹⁸ A Mahuika “Whakapapa is in the heart” in K S Coates and P G McHugh (eds) Living Relationships: Kotahi Ngatahi | The Treaty of Waitangi in the New Millennium (Victoria University Press, Wellington, 1998) as cited in Bevan Tipene-Matua and Mark Henaghan “Māori Perspectives on Pre-Birth Genetic Testing with Particular Focus on PGD” in Human Genome Research Project Choosing Genes for Future Children: Regulating Preimplantation Genetic Diagnosis (Te Whare Wānanga o Ōtākou | University of Otago, Dunedin, 2006) 69 at 75. See also Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 47.

... determinant of mana rights to land, to marae, to membership of a whanau, hapu, and collectively the iwi, the whakapapa determines kinship roles and responsibilities to other kin, as well as one’s place and status within society.

• 2.67 Mead has further described whakapapa as legitimising participation in hapū affairs and opening doors to the assets of the iwi.119 In short, Mead has said, “whakapapa is belonging”.120
• 2.68 Tamariki Māori literally embody the continuation of whakapapa, which in turn signals the wellbeing of the iwi, hapū and whānau. Children are considered taonga in te ao Māori,121 a point that has been emphasised by Waihoroi Shortland:122

... the starting point for the Māori worldview is ‘he tamaiti, he taonga’; every child is precious, every child is a taonga of their entire whānau, hapū and iwi — and as such tamariki are the responsibility of all of them.

• 2.69 According to Dr Rangimārie Mihomiho Rose Pere:123

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.

• 2.70 Whanaungatanga is considered to be the most pervasive tikanga principle.124 It has been described as “the glue that held, and still holds, the system together”.125 Pere has said that:126

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.

• 2.71 Professor Patu Hohepa has explained that:127

[W]hanaungatanga refers to the close relationship engendered between members of the whānau of extended family as a consequence of working together. All members must ideally share compassion (aroha), trust (pono), truthfulness (tika) with each other. That

¹¹⁹ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 47.

¹²⁰ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 47.

¹²¹ See Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at [240]. See also Donna Hall and Joan Metge “Kua Tutū Te Puehu, Kia Mau | Māori aspirations and family law” in Mark Henaghan and Bill Atkin (eds) Family Law Policy in New Zealand (2nd ed, Oxford University Press, Auckland, 2002) at 57.

¹²² In expert evidence given in Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Pāharakeke, He Rito Whakakīkinga Whāruarua: Oranga Tamariki Urgent Inquiry (Wai 2915, 2021) at 15.

¹²³ 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.

¹²⁴ Joseph Williams “He Aha Te Tikanga Maori” (paper prepared for Te Aka Matua o te Ture | Law Commission (draft), 1998) at 9.

¹²⁵ Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at 4.

¹²⁶ 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.

¹²⁷ Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 20.

feeling of whanaungatanga must also extend to others to whom one develops a close familial, friendship or reciprocal relationship.

• 2.72 Tā Joseph Williams has also explained that the importance of kin relationships, the priority accorded to the collective and the responsibility of the collective for its individuals remain powerful values in contemporary Māori life.128 The ethic of collectivism does not diminish the value of the individual in te ao Māori but adds to their significance, each person representing a link in the chain of life.129
• 2.73 It has been suggested that, most simply, whanaungatanga is the rights, responsibilities and expected mode of behaviour that accompany relationships and that the term has been widened by modern Māori to include kin-like reciprocal relationships among people generally.130
• 2.74 It follows that whānau and wider kin groups may take a considerable interest in surrogacy, given the significance of whakapapa and children.131 Whānau may be involved in a decision by a whānau member to have a child through surrogacy or to act as a surrogate. Whānau may also have whakawhanaungatanga responsibilities in relation to the parties to a surrogacy arrangement and the surrogate-born child. Hapū and iwi may have an interest in the consequences of surrogacy more generally, given the implications of whakapapa for responsibilities to and entitlements from hapū and iwi.132

Other relevant tikanga principles

• 2.75 Tapu is a principle in te ao Māori that acts as a “corrective and coherent power”.133 Hohepa has defined it as:134

... the essence of sanctity, cultural protection, sacredness, set apartness. It is not only a possible source of protection for all things, it also has a ‘potential for power’.

¹²⁸ Joseph Williams “He Aha Te Tikanga Maori” (paper prepared for Te Aka Matua o te Ture | Law Commission (draft), 1998) at 10.

¹²⁹ Di Pitama, George Ririnui and Ani Mikaere Guardianship, Custody and Access: Māori Perspectives and Experiences (Te Manatū Ture | Ministry of Justice and Te Tari Kooti | Department for Courts, August 2002) at 22.

¹³⁰ Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: a Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 524.

¹³¹ The tensions between the right of the collective and the right of the individual are discussed in the pre-birth genetic testing context in Bevan Tipene-Matua and Mark Henaghan “Māori Perspectives on Pre-Birth Genetic Testing with Particular Focus on PGD” in Human Genome Research Project Choosing Genes for Future Children: Regulating Preimplantation Genetic Diagnosis (Te Whare Wānanga o Ōtākou | University of Otago, Dunedin, 2006) 69 at 92 and 116.

¹³² In Chapter 3, we examine the importance of genetic and gestational origins and whakapapa from a child’s rights perspective. In Chapter 7, we recommend a surrogacy birth register to preserve information for surrogate-born people about their genetic and gestational origins and whakapapa.

¹³³ 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 59. 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); and Ramari Paul, Hui Kahu, Jason Ataera and Chappie Te Kani (Tangata Whenua Student Work Programme).

¹³⁴ Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 18.

• 2.76 Tapu can be traced to the tūpuna, then to the atua Māori and then to Ranginui and Papatūānuku.135 This gives rise to an “intrinsic tapu” that all people, places and things possess by virtue of their connection to the atua Māori.
• 2.77 It may be particularly relevant in the context of surrogacy to note Mead’s description of respect for the person as te tapu o te tangata, the sanctity of the person, and the identity and spiritual attributes of an individual born of a Māori parent or parents.136
• 2.78 Mauri may also be relevant. Dr Cleve Barlow has described how, when a person is born, only the mauri or power of Io can join the two parts of body and spirit together.137 Mead has explained that mauri, the spark of life, is the active component that indicates a person is alive.138
• 2.79 Mead has observed that surrogacy aims to create a new mauri in a way that does not follow the accepted norm, asking whether this puts the mauri of the child at risk.139 While not discussing the issues in depth, Mead expressed the view that “most of the concerns are probably focused on moral and social issues rather than on risks to the mauri”.140
• 2.80 Pere describes several examples of mauri, including mauri o te tangata, observing that:141

If a person feels that she is respected and accepted for what she herself represents and believes in, particularly by people who relate or interact with her, then her mauri waxes; but should she feel that people are not accepting her in her totality, so that she is unable to make a positive contribution from her own makeup as a person, then her mauri wanes.

• 2.81 The principle of mana must also be considered. In a narrow sense, mana can be defined as “the integrity of a person or object”.142 In a wider sense, it is a measure of all things that are gathered from “ancestral and spiritual inheritance, prestige, power, recognition, efficacy, influence, authority and personal ability”.143 Mead has explained that “tapu is inseparable from mana”144 and, as noted above, that every Māori child is born with mana.145

¹³⁵ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 50.

¹³⁶ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 43–67.

¹³⁷ Cleve Barlow Tikanga Whakaaro: Key Concepts in Māori Culture (Oxford University Press, Auckland, 1994) at 83.

¹³⁸ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 57.

¹³⁹ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 373–374.

¹⁴⁰ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 374.

¹⁴¹ Rangimarie Rose Pere Ako: Concepts and Learning in the Māori Tradition (Te Kohanga Reo National Trust Board, Wellington, 1994) at 32.

¹⁴² Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 19.

¹⁴³ Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 18.

¹⁴⁴ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 34.

¹⁴⁵ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 55. The concept of mana has been incorporated into legislation about the care of children, the Oranga Tamariki Act 1989. The purposes of this Act “are to promote the well-being of children, young persons, and their families, whānau, hapū, iwi, and family groups” including by “recognising mana tamaiti (tamariki), whakapapa, and the practice of whanaungatanga for children and young persons who come to the atttention of the department”: s 4(1)(g). The Oranga Tamariki Act defines mana

tamaiti (tamariki) to mean “the intrinsic value and inherent dignity derived from a child’s or young person’s whakapapa (genealogy) and their belonging to a whānau, hapū, iwi, or family group, in accordance with tikanga Māori or its equivalent in the culture of the child or young person”: s 2 definition of “mana tamaiti (tamariki)”. See discussion in

• 2.82 Dr Mānuka Hēnare has observed that:146

In the Maori world, virtually every activity, ceremonial or otherwise, has a link with the maintenance of and enhancement of mana. It is central to the integrity of the person and the group. Many everyday measures, threaded into the fabric of existence, are designed, consciously or otherwise, as maintainers of mana.

• 2.83 While mana is both inherited and bestowed, it is not something that people or groups can claim for themselves (even though it may be bestowed on an individual, it is always within the context of enhancing the mana of the group).147 Therefore, mana has very little relevance outside of a collective context.
• 2.84 Mana plays an important role in whānau. The whānau as a whole has its own mana that comprises a core of mana tūpuna, but it is also affected by the behaviour of individual members and the way in which the whānau fulfils its function as a collective.148 Whānau members have a shared responsibility to work to build up the mana of the group and also to restore it when damaged.149 Pere has said that “the mantle of mana embraces people, and when worn demands and provides far more than just prestige and status”.150
• 2.85 It is said that mana, kaitiakitanga and rangatiratanga are all infused in the maintenance and enhancement of whakapapa.151 Mead has argued that ideally a new idea (which might include the modern practice of surrogacy) should maintain, enhance or improve mana and lift everybody who participates in the event.152
• 2.86 Kaitiakitanga is an obligation on those who have mana to act unselfishly, with right mind and heart and with proper procedure.153 Mana and kaitiakitanga operate together as “right

Mihiata Pirini and Anna High “Dignity and Mana in the “Third Law” of Aotearoa New Zealand” (2021) 29 NZULR 623 at 641–642 and 644.

¹⁴⁶ Manuka Henare “Nga Tikanga Me Nga Ritenga O Te Ao Maori | Standards and Foundations of Maori Society” in Mental Health Foundation of New Zealand Te Ao Pumau: Standards and Foundations of Maori Society (Auckland, 1997) 7 at 22.

¹⁴⁷ Rosemary Du Plessis and others The Social, Cultural, Ethical and Spiritual Implications of Genetic Testing: Preliminary Findings (Constructive Conversations | Kōrero Whakaaetanga, Te Whare Wānanga o Waitaha | University of Canterbury, December 2004) at 15; and Bevan Tipene-Matua and Mark Henaghan “Māori Perspectives on Pre-Birth Genetic Testing with Particular Focus on PGD” in Human Genome Research Project Choosing Genes for Future Children: Regulating Preimplantation Genetic Diagnosis (Te Whare Wānanga o Ōtākou | University of Otago, Dunedin, 2006) 69 at 79.

¹⁴⁸ Bevan Tipene-Matua and Mark Henaghan “Māori Perspectives on Pre-Birth Genetic Testing with Particular Focus on PGD” in Human Genome Research Project Choosing Genes for Future Children: Regulating Preimplantation Genetic Diagnosis (Te Whare Wānanga o Ōtākou | University of Otago, Dunedin, 2006) 69 at 79.

¹⁴⁹ Joan Metge New Growth from Old — The Whanau in the Modern World (Victoria University Press, Wellington, 1995) as cited in Bevan Tipene-Matua and Mark Henaghan “Māori Perspectives on Pre-Birth Genetic Testing with Particular Focus on PGD” in Human Genome Research Project Choosing Genes for Future Children: Regulating Preimplantation Genetic Diagnosis (Te Whare Wānanga o Ōtākou | University of Otago, Dunedin, 2006) 69 at 79.

¹⁵⁰ Rangimarie Rose Pere Ako: Concepts and Learning in the Māori Tradition (Te Kohanga Reo National Trust Board, Wellington, 1994) at 38.

¹⁵¹ Bevan Tipene-Matua and Mark Henaghan “Māori Perspectives on Pre-Birth Genetic Testing with Particular Focus on PGD” in Human Genome Research Project Choosing Genes for Future Children: Regulating Preimplantation Genetic Diagnosis (Te Whare Wānanga o Ōtākou | University of Otago, Dunedin, 2006) 69 at 79.

¹⁵² Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 379.

¹⁵³ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and Identity — Te Taumata Tuatahi (Wai 262, 2011) at 23.

and responsibility”.154 Kaitiakitanga obligations exist over all taonga.155 Kaitiakitanga has been described as the reciprocal obligation to care for the wellbeing of a person or resources,156 and manaakitanga, literally translated, means to care for a person’s mana.157

• 2.87 Aroha conveys that the values of care, respect and affection are important.158 Barlow has observed that “[a] person who has aroha for another expresses genuine concern towards them and acts with their welfare in mind, no matter what their state of health or wealth”.159 Pere has said that:160

... the commitment of ‘aroha’ is vital to whanaungatanga and the survival of what the group sees as important. Loyalty, obligation, commitments, an inbuilt support system made the whanau a strong stable unit, within the hapū, and consequently the tribe.

• 2.88 Pere explained that, in this context, aroha pertains to the commitment of people who see themselves as having the same ancestral presence and breath of life.161

Implications for our review

• 2.89 In this section, we have sought to highlight tikanga principles that we suggest are relevant in the context of surrogacy. How tikanga responds to surrogacy is a matter that requires further consideration by Māori, as we explain below. Nonetheless, we suggest that it is likely that tikanga imposes obligations on the parties to a surrogacy arrangement and their whānau to protect and care for surrogate-born tamariki Māori. The principles of whakapapa, whanaungatanga, manaakitanga, kaitiakitanga and aroha indicate this. Obligations may also fall on whānau to care for and enhance the mana of a surrogate and intended parents, given the responsibilities they have in relation to the surrogate-born child. Complex questions may arise about the application of tikanga when not all parties involved in the creation of the child are Māori.

Whāngai arrangements

• 2.90 Understanding the nature and role of whāngai relationships in te ao Māori provides further important context to considering surrogacy.

¹⁵⁴ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and Identity — Te Taumata Tuatahi (Wai 262, 2011) at 23.

¹⁵⁵ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and Identity — Te Taumata Tuatahi (Wai 262, 2011) at 23.

¹⁵⁶ 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 4.

¹⁵⁷ 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 166.

¹⁵⁸ 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 151.

¹⁵⁹ Cleve Barlow Tikanga Whakaaro: Key Concepts in Māori Culture (Oxford University Press, Auckland, 1994) at 8.

¹⁶⁰ Rangimarie Rose Pere Ako: Concepts and Learning in the Māori Tradition (Te Kohanga Reo National Trust Board, Wellington, 1994) at 26.

¹⁶¹ Rangimarie Rose Pere Ako: Concepts and Learning in the Māori Tradition (Te Kohanga Reo National Trust Board, Wellington, 1994) at 26.

• 2.91 Māori have traditionally entered whāngai (also known as atawhai) arrangements where a child is given to others to raise.162 These arrangements continue to be made today.163 The principles that underpin whāngai have been described as openness, caring for the child within the family, whakapapa and whanaungatanga.164 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.165
• 2.92 Whāngai arrangements are used for a variety of reasons, and tikanga relating to whāngai varies among iwi in its application.166 For instance, a whāngai arrangement could be entered into due to infertility,167 as a means of strengthening relations within hapū or iwi168 or to instil cultural knowledge in a child.169 Whāngai relationships are underpinned by the primacy of children in the whānau and Māori society.170 Dr Lorna Dyall explained that “the sharing of kin was and is still seen today by Maori as a taonga in which all involved have a responsibility to ensure that the interests of the child are paramount”.171
• 2.93 Surrogacy may be considered by some Māori to be similar to or a form of whāngai arrangement. As we explain in Chapter 6, we are aware of several surrogacy arrangements where the parties were interested in exploring a whāngai arrangement in relation to the surrogate-born child rather than pursuing a legal adoption. One Māori academic told us “surrogacy arrangements could be considered as another form of

¹⁶² 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.

¹⁶³ See discussion in Cherryl Smith “Tamaiti Whāngai and Fertility” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 143.

¹⁶⁴ 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.

¹⁶⁵ See the report of Te Wharehuia Milroy, which forms part of the Court record referred to in te Kooti Pīra Māori o Aotearoa | Māori Appellate Court decision Hohua — Estate of Tangi Biddle or Hohua (2001) 10 Rotorua Appellate MB 43 (10 APRO 43).

¹⁶⁶ 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.

¹⁶⁷ Cherryl Smith “Tamaiti Whāngai and Fertility” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 143 at 202.

¹⁶⁸ 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 te Kooti Whenua Māori | Māori Land Court decision Karauti — Succession to George or Hori Kiwa Tukua (2000) 116 Otorohanga MB 81 (116 OT 81).

¹⁶⁹ See Te Aka Matua o te Ture I Law Commission New Issues in Legal Parenthood: A discussion paper (NZLC PP54, 2004) at [2.24].

¹⁷⁰ Annabel Ahuriri-Driscoll “Adoption and surrogacy — Māori perspectives” (seminar presented to Redefining Family — growing families through adoption, donor-conception and surrogacy conference, Te Wānanga Aronui o Tāmaki Makau Rau | Auckland University of Technology, 13-14 January 2016) (unpublished informal notes to accompany presentation) at 3. Ahuriri-Drsicoll notes that whāngai relationships can, however, be unsuccessful on occasion.

¹⁷¹ Lorna Dyall “Awhina i te hangarau whakato: Tiaki te whakapapa | Assisted reproductive technologies: Protecting the generations” in Sandra Coney and Anne Else (eds) Protecting our future: the case for greater regulation of assisted reproductive technology (Women’s Health Action Trust and New Zealand Law Foundation, 1999) 35 at 37.

whāngai, as the principles are the same”.172 A respondent to a questionnaire on Māori attitudes to assisted human reproduction in 2008 also said:173

“Why should it be any different from whāngai?” And since whāngai is acceptable, “why shouldn’t surrogacy be acceptable?”

• 2.94 The basis for suggesting surrogacy and whāngai arrangements are similar may focus on the fact the child is cared for by people other than the woman who gave birth to the child. However, there are differences. A significant difference is that, in a surrogacy arrangement, the surrogate-born child may whakapapa to the intended parents and/or to third party gamete donors rather than the surrogate. The parties in a surrogacy arrangement may be whānau or close friends or they may have connected solely for the purpose of the surrogacy arrangement. An ongoing relationship between the surrogate and the surrogate-born child might be contemplated, but that will not always be an objective of the arrangement. In contrast, whāngai arrangements rarely stray beyond the whānau or hapū and are not always entered into due to the inability of the mātua whāngai to have children of their own. A relationship with the birth parents of tamariki whāngai is generally a prerequisite of a whāngai arrangement to ensure that the child remains aware of their whakapapa. In a whāngai arrangement, the child may return to the care of their birth parents.
• 2.95 For these reasons, Māori may have differing views about whether surrogacy can be considered tika in reliance on its similarities to whāngai arrangements. Some Māori may consider that surrogacy should not be likened to whāngai and that it instead should be established appropriately within a tikanga context on its own merits. Ahuriri-Driscoll has observed that some Māori may not see surrogacy as acceptable given its emphasis on nuclear family and a sense of biological entitlement that is not “tika” when other options are available, such as whāngai arrangements or specific roles for those who do not have children.174
• 2.96 In Chapter 6, we address the emphasis in state law on the legal status of parenthood, the lack of legal recognition of whāngai arrangements and the consequences of this for Māori. We note that, in its review of adoption law, Tāhū o te Ture | Ministry of Justice is considering whāngai relationships more broadly.175

¹⁷² See also Cherryl Smith “Tamaiti Whāngai and Fertility” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 143 at 198. However, as we note at [2.55] above, a Māori submitter on the Issues Paper thought whāngai arrangements were “very different” to modern concepts of surrogacy.

¹⁷³ Marewa Glover Māori Attitudes to Assisted Human Reproduction: An Exploratory Study (School of Population Health, Waipapa Taumata Rau | University of Auckland, 2008) at [3.7.15].

¹⁷⁴ Annabel Ahuriri-Driscoll “Adoption and surrogacy — Māori perspectives” (seminar presented to Redefining Family — growing families through adoption, donor-conception and surrogacy conference, Te Wānanga Aronui o Tāmaki Makau Rau | Auckland University of Technology, 13–14 January 2016) (unpublished informal notes to accompany presentation) at 9. Ahuriri-Driscoll also notes that increasing attention to infertility among Māori and its potential stigma will be another factor in considering surrogacy as an appropriate option, at 10.

¹⁷⁵ Te Tāhū o te Ture | Ministry of Justice Adoption in Aotearoa New Zealand — Discussion document (June 2021) at 28– 29.

RECOMMENDATION

THE NEED FOR FURTHER RESEARCH

• 2.97 The starting place for understanding tikanga Māori and surrogacy is to locate the principles and practices related to surrogacy within a Māori philosophical framework.176
• 2.98 While core tikanga principles undoubtedly inform surrogacy in te ao Māori, further consideration and articulation of tikanga Māori as it relates to the practice of surrogacy is required,177 and this was supported in submissions received on the Issues Paper.178
• 2.99 This research might consider how tikanga could inform practice in different situations. For example, the research may consider how tikanga could inform Māori intended parents who are considering arranging for a surrogate to carry a child who is genetically unrelated to them or a Māori surrogate who is considering carrying a child for non-Māori intended parents. Complex questions may arise about the application of tikanga when one or more of the surrogate-born child, surrogate and intended parents are not Māori.
• 2.100 The research might also explore whether existing tikanga can be adapted for the surrogacy context. For example, the tikanga around conception, pregnancy and childbirth might be adapted to take into account the role of a surrogate in the creation of a child. This might include considering the appropriate approach to the practice of returning the whenua and pito (umbilical cord) of a Māori child to the land to which they are connected through whakapapa, where the surrogate has no genetic connection to the child. This practice is undertaken predominantly to preserve the child’s mana and mauri and to

¹⁷⁶ This approach was proposed in Di Pitama, George Ririnui and Ani Mikaere Guardianship, Custody and Access: Māori Perspectives and Experiences (Te Manatū Ture | Ministry of Justice and Te Tari Kooti | Department for Courts, August 2002) at 92. Research undertaken in the context of genetic testing may provide relevant models for the research we recommend here: Bevan Tipene-Matua and Mark Henaghan “Māori Perspectives on Pre-Birth Genetic Testing with Particular Focus on PGD” in Human Genome Research Project Choosing Genes for Future Children: Regulating Preimplantation Genetic Diagnosis (Te Whare Wānanga o Ōtākou | University of Otago, Dunedin, 2006) 69; Bevan Tipene-Matua and Benita Wakefield “Establishing a Māori, Ethical Framework for Genetic Research with Māori” in Human Genome Research Project Genes, Society and The Future: Volume 1 (Te Whare Wānanga o Ōtākou | University of Otago, Dunedin, 2007) 379; and Rosemary Du Plessis and others The Social, Cultural, Ethical and Spiritual Implications of Genetic Testing: Preliminary Findings (Constructive Conversations | Kōrero Whakaaetanga, Te Whare Wānanga o Waitaha | University of Canterbury, December 2004). See also the tikanga Māori framework proposed for new issues in Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016), ch 21.

¹⁷⁷ It may be appropriate for the research to be conducted as part of broader research into Māori perspectives and tikanga relating to assisted reproductive technology given that existing research in this area was undertaken more than a decade ago: Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) at xiii. See in particular the discussion of the potentially broad implications of assisted reproductive technology for Māori in Carl Mika “A Review of the Law Relating to Assisted Reproductive Technology in New Zealand,

and Its Implications for Māori: Application to Other Areas of Law” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 101.

¹⁷⁸ Further research was supported by 74 submissions, comprising 63 personal submissions and 11 submissions from organisations (Australian and New Zealand Infertility Counsellors Association, Ethics Committee on Assisted Reproductive Technology, Fertility New Zealand, Fertility Plus, New Zealand Council of Trade Unions, New Zealand Nurses Organisation, Ngā Rangahautira, Office of the Children’s Commissioner, Oranga Tamariki | Ministry for Children, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society).

reinforce the whakapapa connection between the child and Papatūānuku.179 Mead has already observed that the tikanga of the whenua and the pito is “being revived and adapted to modern conditions and circumstances”.180 One Māori academic we engaged with in this review suggested that those involved in a surrogacy may consider replanting a plant from a donor’s iwi in the rohe of the receiving parent so that a balance of mauri may prevail.

• 2.101 In seeking to better understand tikanga as it relates to surrogacy, engagement with mātauranga Māori and tikanga Māori is necessary, and it should be Māori who lead the recommended research.181 Consultation with whānau, hapū and iwi as well as with Māori health providers will be required. A common theme in consultation was that law reform specific to Māori requires consultation with Māori and that anything “for Māori” should be “by Māori”.
• 2.102 Such research will give effect to the HART Act principle that “the needs, values, and beliefs of Māori should be considered and treated with respect”182 and would facilitate compliance with Ngā Paerewa Health and Disability Services Standard NZS 8134:2021.183 This sets out specific criteria for fertility clinics that, if met, generates an outcome people utilising the service should expect to experience.184 One outcome is that Māori should be able to expect that fertility clinics “embrace, support and encourage a Māori worldview of health”,185 and one criteria to generate this outcome is ensuring services are operating in ways that are culturally safe.186
• 2.103 The Advisory Committee on Assisted Reproductive Technology, as the committee established to issue guidelines to ECART on “any matter relating to any kind of assisted reproductive procedure”,187 may be best placed to work with Māori in relation to this research. The Health Research Council and the Māori Health Authority, contemplated by Pae Ora (Healthy Futures) Bill 2021 (82-1), could also play a role.188 The completed research should be readily accessible to the public.

¹⁷⁹ 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.

¹⁸⁰ Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 321.

¹⁸¹ Mead explained, in Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington, 2016) at 8:

All tikanga Māori are firmly embedded in mātauranga Māori, which might be seen as Māori philosophy as well as Māori knowledge. While mātauranga Māori might be carried in the minds, tikanga Māori puts that knowledge into practice and adds the aspects of correctness and ritual support.

¹⁸² Human Assisted Reproductive Technology Act 2004, s 4(f).

¹⁸³ Pursuant to the Health and Disability Services (Safety) Standards Notice 2021.

¹⁸⁴ Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 at [0.5].

¹⁸⁵ Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 at [1.1].

¹⁸⁶ Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 at [1.1.2].

¹⁸⁷ Human Assisted Reproductive Technology Act 2004, s 35(1)(a). We discuss the roles of the Advisory Committee on Assisted Reproductive Technology and the Ethics Committee on Assisted Reproductive Technology in Chapter 4 of this Report.

¹⁸⁸ The Health Research Council is the Government’s principal funder of health research. It funded the 3-year study of fertility and infertility from a Māori perspective, the results of which are published and discussed in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012). At the time of writing,

• 2.104 The remaining recommendations in this Report draw on our broad understanding of relevant tikanga Māori, especially whakapapa and whanaungatanga. We also make several recommendations to support Māori to be able to act in accordance with tikanga when entering a surrogacy arrangement. In Chapter 5, we recommend further guidance or advice be provided to ensure counselling is culturally appropriate from an ao Māori perspective, and in Chapter 10, we recommend the Government produces comprehensive and clear information on surrogacy law and practice that recognises ao Māori. The research we recommend be undertaken will ensure that these steps are able to be implemented in a meaningful way.

Pae Ora (Healthy Futures) Bill 2021 (85-1) was before the Pae Ora Legislation Committee. Clause 19 of the Bill contemplates functions for the Māori Health Authority that would enable it to be involved in facilitating the research recommended in this Report.

CHAPTER 3

Developing good surrogacy law

INTRODUCTION

• 3.1 In this chapter, we consider the rights and interests that arise from tikanga Māori, te Tiriti o Waitangi | Treaty of Waitangi (the Treaty)1 and human rights law and develop a set of guiding principles for surrogacy law reform.
• 3.2 Our guiding principles for surrogacy law reform underpin the recommendations we make in this Report. We think that applying these principles throughout the law reform process will result in good surrogacy law, namely, law that meets the needs and reasonable expectations of New Zealanders and protects and promotes the rights and interests of people involved in surrogacy arrangements.
• 3.3 It is important to note, however, that the rights and interests of those involved in surrogacy, including the surrogate-born child, the surrogate, and the intended parents, will not always align.2 Our task throughout this review has been to carefully balance competing rights and interests where they arise. For reasons we explain below, however, we consider it necessary to give paramountcy to the best interests of the child.

TIKANGA MĀORI

• 3.4 Tikanga Māori is constitutionally significant to the development of the law in four mutually reinforcing respects:3

¹ When discussing te Tiriti o Waitangi | Treaty of Waitangi in this Report, we use “the Treaty” as a generic term that is intended to capture both the Māori text (te Tiriti o Waitangi or “te Tiriti”) and the English text (the Treaty of Waitangi). However, in this chapter, we conclude that te Tiriti, the Māori text, should be regarded as the primary source of the commitments made when Māori and the Crown entered into the Treaty in 1840 and the appropriate foundation for understanding the rights and obligations of Māori and the Crown in 21st century Aotearoa New Zealand. For this reason, we often refer to te Tiriti rather than the Treaty in this Report.

² 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.

³ Te Aka Matua o te Ture | Law Commission is currently undertaking a study of tikanga Māori as a system of ethics and law.

(a) First, as an independent source of rights and obligations in te ao Māori and the first law of Aotearoa New Zealand.4

(b) Second, in terms of Treaty rights and obligations that pertain to tikanga.

(c) Third, where tikanga values comprise a source of the New Zealand common law5 or have been integrated into state law by statutory reference.6

(d) Fourth, to give effect to Aotearoa New Zealand’s international obligations in relation to Māori as indigenous people, including under 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 (UNDRIP).7

• 3.5 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”.8
• 3.6 We discuss tikanga in the surrogacy context in Chapter 2. There, we observe that we are not aware of deliberative discussions among Māori on how tikanga is engaged in the context of surrogacy in its contemporary form. We recommend that the Government should commission research led by Māori to provide a better understanding of tikanga Māori and surrogacy and Māori perspectives on surrogacy in practice.

⁴ Ani Mikaere “The Treaty of Waitangi and Recognition of Tikanga Māori” in Michael Belgrave, Merata Kawharu and David V Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (2nd ed, Oxford University Press, Auckland, 2005) 330 at 331 and 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. See also Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, particularly the reasons given by William Young and Ellen France JJ at [166]–[169], Glazebrook J at [237], Williams J at [297] and Winkelmann CJ at [332].

⁵ As recognised by te Kōti Mana Nui | Supreme Court in Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94]– [95]; and Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127 at [9] and [169]. 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].

⁶ Statutes 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. See also Christian N Whata “Evolution of legal issues facing Maori” (paper presented to Maori Legal Issues Conference, Legal Research Foundation, Auckland, 29 November 2013).

⁷ Aotearoa New Zealand affirmed 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) (UNDRIP) in 2010. UNDRIP recognises the importance of protecting the collective rights of indigenous peoples and addresses the rights to self-determination, preservation of culture and institutions, participation in decision-making and consultation, and rights to lands and resources. As a declaration rather than a convention, UNDRIP does not have legally binding force

attached to it in international law. However, UNDRIP is widely viewed as not creating new rights but rather elaborating on internationally recognised human rights as they apply to indigenous peoples and individuals, thus in this way having a binding effect: see 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 34–35 and 38–44; Te Rōpū Whakamana | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and Identity — Te Taumata Tuatahi (Wai 262, 2011) at 42 and 233–234; and Claire Charters “The UN Declaration on the Rights of Indigenous Peoples in New Zealand Courts: A Case for Cautious Optimism” in UNDRIP Implementation: Comparative Approaches, Indigenous Voices from CANZUS — Special Report (Centre for International Governance Innovation, 2020) 43 at 48–50.

⁸ 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.

• 3.7 The tikanga principles we discuss in Chapter 2 nonetheless provide context for the recommendations in this Report, and we refer to tikanga throughout this Report where it informs our approach.

TE TIRITI O WAITANGI | TREATY OF WAITANGI9

• 3.8 The Treaty is a foundation of government in Aotearoa New Zealand.10 As recorded in Cabinet guidance:11

The Treaty creates a basis for civil government extending over all New Zealanders, on the basis of protections and acknowledgements of Maori rights and interests within that shared citizenry.

• 3.9 The Treaty was signed in 1840 by representatives of the British Crown and rangatira representing many, but not all, hapū.12 There is a Māori text and an English text. There are differences between the two texts, and the meaning and significance of each text, the relationship between them and whether they can or should be reconciled through interpretation and the elaboration of Treaty principles are the subject of significant debate, scholarship and judicial consideration.13
• 3.10 In the Māori text, article 1 provides that Māori rangatira grant the Crown kāwanatanga, the right to govern (ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu — te Kawanatanga katoa o o ratou wenua). Article 2 provides that the Crown will protect the exercise of tino rangatiratanga over lands, villages and all things valued and treasured (ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu — ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa). Tino rangatiratanga has been described as the exercise of the chieftainship of rangatira, which is unqualified except by applicable tikanga.14

⁹ The discussion in this section is based on the discussion of te Tiriti o Waitangi | Treaty of Waitangi 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 R145, 2021) at [2.54]–[2.67] and [2.122]–[2.124].

¹⁰ 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 1 at 1.

¹¹ Cabinet Office Circular “Te Tiriti o Waitangi/Treaty of Waitangi Guidance” (22 October 2019) CO (19) 5 at [7].

¹² 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 14.

¹³ See for example Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (Victoria University Press, Wellington, 2016); 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; Ani Mikaere Colonising Myths: Māori Realities — He Rukuruku Whakaaro (Huia Publishers, Wellington, 2011); and Ned Fletcher “A Praiseworthy Device for Amusing and Pacifying Savages? What the

Framers Meant by the English Text of the Treaty of Waitangi” (PhD Dissertation, Waipapa Taumata Rau | University of Auckland, 2014). See also the Waitangi Tribunal reports referred to in the following discussion, in particular, the 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 chs 8 and 10.

¹⁴ IH Kawharu “Translation of Maori text” in IH Kawharu (ed) Waitangi: Māori and Pākehā Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 319 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.

• 3.11 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.15
• 3.12 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.16 Article 3 has been understood as a guarantee of equity between Māori and other New Zealanders.17
• 3.13 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). He Whakaputanga was a declaration of the sovereignty and independence of those rangatira. Te Rōpū Whakamana i te Tiriti | Waitangi Tribunal (the Tribunal) has considered the “striking absence” of any record of explicit discussion about its ongoing relevance or its relationship with the Treaty.18 The Tribunal has also considered the failure of the British to explain why and how the Treaty nullified He Whakaputanga to be significant.19
• 3.14 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.20 The Tribunal has concluded that these also form part of the agreement reached.21 Not all hapū 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.22

¹⁵ Article 2 also gave the Crown an exclusive right of pre-emption over any land Māori wanted to “alienate”.

¹⁶ IH Kawharu “Translation of Maori text” in IH Kawharu (ed) Waitangi: Māori and Pākehā Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 319 at 321.

¹⁷ 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. See also 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 [13.5]– [13.7].

¹⁸ 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.

¹⁹ 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.

²⁰ Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 114.

²¹ 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.

²² 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.

• 3.15 The overwhelming majority of Māori signatories signed te Tiriti, the Māori text, rather than the English text.23 It has long been acknowledged that the more than 500 rangatira who signed would have done so 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 te reo Māori, which likely reflected the Māori text. It is noteworthy that, on behalf of the British Crown, Lieutenant-Governor William Hobson signed te Tiriti.24
• 3.16 The Tribunal has mentioned these matters in various reports. For example, the Tribunal has said that precedence, or at least considerable weight, should be given to the Māori text when there is a difference between it and the English text, given the circumstances mentioned above and because this was consistent with the contra proferentem rule of the law of treaties that, where there is ambiguity, a provision should be construed against the party that drafted or proposed the relevant provision.25
• 3.17 With respect to articles 1 and 2 of te Tiriti, the Tribunal has observed:26

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.

• 3.18 Within te ao Māori, rangatiratanga can embody the authority of a rangatira but also that of the people, which, in the context of this review, includes whānau and hapū. It involves the exercise of mana in accordance with and qualified by tikanga and its associated kawa and, through tikanga, the managing of a dynamic interface between people, their environment and the non-material world.27 It is the substance of this rangatiratanga that

²³ 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 the 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.

²⁴ 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 522.

²⁵ See for example Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tauranga Moana, 1886–2006: Report on the Post-Raupatu Claims (Wai 215, 2010) at 148; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report of The Waitangi Tribunal on The Orakei Claim (Wai 9, 1987) at 180; and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Ngai Tahu Report 1991 (Wai 27, 1991) at 223. See also FM Brookfield Waitangi and Indigenous Rights: Revolution, Law, and Legitimation (Auckland University Press, Auckland, 1999) at 55 as cited in Judith Pryor

“‘The Treaty always speaks’: Reading the Treaty of Waitangi/Te Tiriti O Waitangi” in Constitutions: Writing Nations, Reading Difference (Birkbeck Law Press, Abingdon (UK), 2008) 85 at 99; and see also Ruth Ross “Te Tiriti o Waitangi: Texts and Translations” (1972) 6 NZJH 129 at 133. But see 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), where the Tribunal did not rely on the contra proferentem doctrine in its interpretation of the Treaty: at 522. For a detailed discussion of the application of the contra proferentem rule by the Tribunal see Benjamin Suter “The Contra Proferentem Rule in the Reports of the Waitangi Tribunal” (LLM Research Paper, Te Herenga Waka

| Victoria University of Wellington, 2014).

²⁶ 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.

²⁷ New Zealand Māori Council Kaupapa: Te Wahanga Tuatahi (February 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.

needs to be upheld and not interfered with through the guarantee of tino rangatiratanga. In effect, te Tiriti envisages the co-existence of different but intersecting systems of political and legal authority.28

• 3.19 Rangatiratanga is exercised within te ao Māori every day 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. Implicit in this is that te Tiriti requires careful thought about what responsible kāwanatanga involves.
• 3.20 Following the publication of the Issues Paper, the Commission published its Report, He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (Succession Report).29 There, we concluded that te Tiriti, the Māori text, should be regarded as the primary source of the commitments made when Māori and the Crown entered into the Treaty in 1840 and the appropriate foundation for understanding the rights and obligations of Māori and the Crown in 21st century Aotearoa New Zealand.30
• 3.21 We also concluded that this 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.31 Instead, it focuses on the relationship between tino rangatiratanga and kāwanatanga and allows us to ask how kāwanatanga can be responsibly exercised in specific contexts, including how the exercise of tino rangatiratanga might be facilitated.
• 3.22 While few submitters commented directly on our discussion of tikanga and te Tiriti in the Issues Paper, two personal submitters, who identified as Māori and were opposed to surrogacy in principle, disagreed with our approach. They considered that te Tiriti and He Whakaputanga mean Māori are entitled to manage their own affairs in relation to whānau and tamariki.
• 3.23 However, Ngā Rangahautira agreed with the Commission’s approach,32 explaining that:

Family law in general has attempted to assimilate Māori through the denial of tikanga Māori. This can be evidenced by the exclusion of whāngai under the Adoption Act 1955, the

²⁸ 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 see Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (Victoria University Press, Wellington, 2016) at 42.

²⁹ 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 R145, 2021).

³⁰ 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 R145, 2021) at [2.54]–[2.67] and [2.122]–[2.123]. We acknowledged the extensive discussion and development of the principles of the Treaty in matters dealt with by the Tribunal and the courts, including in circumstances where statutes require reference to the principles. We said that this has led to some insightful and sophisticated consideration of important questions, and we appreciate that statutory references to the Treaty mean that this is likely to continue. We accepted that, on some matters, Treaty principles may promote the exploration of what responsible kāwanatanga looks like in specific circumstances. In Te Aka Matua o te Ture | Law Commission Review of Surrogacy | Te Kōpū Whāngai: He Arotake (NZLC IP47, 2021) at [3.75]–[3.81], we said that this review engages the principles of partnership, active protection, equity and options (Māori having choices or options available to them).

³¹ Article 3 in both the Māori and English texts conveys an undertaking of similar effect.

³² Ngā Rangahautira said in their submission on the Issues Paper that, when making submissions on law reform, it “does not seek to usurp the authorities and responsibilities of whānau, hapū and iwi”.

exclusion of ōhaki as a valid expression of testamentary wishes, and the exclusion of Māori customary marriage as a recognised relationship within succession.

It is important that any new law for surrogacy does not go down the same path of assimilation and denial of tikanga Māori. Facilitating tikanga Māori in this area through responsible kāwanatanga, and the promotion of Māori rangatiratanga, is therefore of the upmost importance within this review.

• 3.24 This approach contemplates the exercise of tino rangatiratanga by Māori on a daily basis together with the exercise of kāwanatanga by the Crown.

HUMAN RIGHTS AND SURROGACY

• 3.25 Human rights underpin Aotearoa New Zealand’s democratic society, and good law should align with these rights.33 Surrogacy engages fundamental human rights for three key groups — surrogate-born children, women who act as surrogates and intended parents. Below, we explore key human rights with reference to international instruments, domestic law and best-practice guidance, research and commentary.34
• 3.26 While international human rights instruments are often regarded as having an individualistic focus, UNDRIP recognises the right of indigenous peoples to full enjoyment, as a collective or as individuals, of human rights and fundamental freedoms.35 A clear mechanism for balancing individual and collective interests is still developing.36 However, Dr Paula King, Donna Cormack and Mark Kōpua have observed that international human rights instruments, such as UNDRIP and the United Nations Convention on the Rights of the Child (UNCROC), can further develop and support tāngata whenua rights grounded in tikanga Māori.37

Human rights of surrogate-born children

• 3.27 Surrogate-born children have a number of rights that need to be considered. These rights are affirmed in UNCROC.38
• 3.28 Over the past decade, significant international attention has been given to the question of surrogacy from a child’s rights perspective. In 2021, the International Social Service

³³ Legislation Design and Advisory Committee Legislation Guidelines (September 2021), ch 4.

³⁴ See for example 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); 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; 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 [23]–[40]; and Paula Gerber and Katie O’Byrne (eds) Surrogacy, Law and Human Rights (Ashgate, United Kingdom, 2015).

³⁵ 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), art 1.

³⁶ Susan Glazebrook “The Declaration on the Rights of Indigenous Peoples and the Courts” [2019] AukULawRw 2; (2019) 25 Auckland U L Rev 11 at 19.

³⁷ Paula King, Donna Cormack and Mark Kōpua “Oranga Mokopuna: A tāngata whenua rights-based approach to health and wellbeing” (2018) 7 MAI Journal 186 at 186 and 194. But see Ani Mikaere “Seeing Human Rights Through Māori Eyes” (2007) 10 Yearbook of New Zealand Jurisprudence 53.

³⁸ United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).

published a set of principles to guide the regulation of surrogacy within a children’s rights framework (Verona Principles).39 This followed two thematic reports on surrogacy by the UN Special Rapporteur.40 In 2022, UNICEF and Child Identity Protection also published recommendations for the regulation of surrogacy to protect the rights of the child.41

• 3.29 While research on the life-long impacts of surrogacy on surrogate-born people is still emerging (see Chapter 2), in 2019, a group of surrogate-born and donor-conceived people presented on their experiences at the United Nations Conference on the 30th anniversary of UNCROC and prepared the International Principles of Donor Conception and Surrogacy.42 These principles are informed by the drafters’ experience and outline what regulation they see as necessary to uphold children’s rights and interests under UNCROC.43
• 3.30 We refer to this work below and throughout this Report.

Best interests of the child

• 3.31 Article 3(1) of UNCROC states that:44

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.

• 3.32 This is widely interpreted as requiring the best interests of the child to be the paramount consideration in the regulation of surrogacy. 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 concerning surrogate-born children.45 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

³⁹ International Social Service Principles for the protection of the rights of the child born through surrogacy (Verona principles) (Geneva, 2021). The development of the Verona Principles is discussed in Chapter 1 of this Report. They were designed to respond to the urgent need for guidance for ensuring respect for the human rights of children born through surrogacy in the context of diverse state approaches to the practice of surrogacy. They do not address the question of whether surrogacy in any form should be permitted or prohibited, and as such “the Principles should not be used as a basis for condoning or encouraging surrogacy”, at 8.

⁴⁰ 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); 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/HRC/37/60 (15 January 2018).

⁴¹ UNICEF and Child Identity Protection Key Considerations: Children’s Rights & Surrogacy (Briefing Note, February 2022).

⁴² Sonia Allan 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); and International Principles for Donor Conception and Surrogacy (November 2019).

⁴³ International Principles for Donor Conception and Surrogacy (November 2019) at 1.

⁴⁴ United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990) (UNCROC), art 3(1). Claire Breen has suggested that UNCROC together with 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 provide a comprehensive package of rights protection for Māori children in Aotearoa New Zealand: Claire Breen “The Declaration and the Implementation of the Rights of the Indigenous Child in Aotearoa New Zealand” ” in Andrew Erueti (ed) International Indigenous Rights in Aotearoa New Zealand

(Victoria University Press, Wellington, 2017) 86 at 89. Breen observed at 89–90 that:

[T]he individualism inherent in article 3 can be tempered by the fact that what is in the best interests of the individual indigenous child may be a decision that can only be made with reference to collective cultural rights as guaranteed in article 30 of [UNCROC].

⁴⁵ 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)].

responsibility related to a child born through surrogacy”.46 UNICEF and Child Identity Protection also recommend that the best interests of the child “must be the paramount consideration in decision-making regarding children born through surrogacy arrangements”.47

• 3.33 Giving paramountcy to the child’s best interests in the surrogacy context means not only providing for their immediate safety and welfare but also considering the long-term implications of surrogacy for the child.48 It also requires providing for the child’s other rights recognised under UNCROC.49
• 3.34 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

• 3.35 Children have several 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.50
• 3.36 An important element of identity rights is the right of access to a child’s origins.51 In the context of surrogacy, the right of access to a child’s origins is widely regarded as

⁴⁶ International Social Service Principles for the protection of the rights of the child born through surrogacy (Verona principles) (Geneva, 2021) at [6.1] and n 27. See also 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), art 16(f).

⁴⁷ UNICEF and Child Identity Protection Key Considerations: Children’s Rights & Surrogacy (Briefing Note, February 2022) at 3. See also International Principles for Donor Conception and Surrogacy (November 2019), art 1.

⁴⁸ International Social Service Principles for the protection of the rights of the child born through surrogacy (Verona principles) (Geneva, 2021) at [6.1].

⁴⁹ 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].

⁵⁰ 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].

⁵¹ 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].

extending to information about a child’s genetic and gestational origins.52 The Verona Principles explain that:53

Every child should be able to enjoy and exercise their right to preserve their identity (nationality, name and family relations) with appropriate assistance and protection. 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.

• 3.37 The importance of preserving information about a surrogate-born child’s origins is explained by UNICEF and Child Identity Protection:54

Decisions about whether to preserve information relevant to a child’s identity can have a lifetime impact on the child, and future generations, in several ways. Knowing one’s origins is fundamental to the child’s physical, psychological, cultural and spiritual development. Having one’s own identity is also a gateway to the enjoyment of the child’s other fundamental rights, such as those related to protection, health, education, and the maintenance of family ties.

• 3.38 The importance of the right of identity and access to origins is also evident from the past practices 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.55 As te Kōti Pira | 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”.56 This can be particularly challenging for Māori adoptees, who may grow up not having an awareness of their whakapapa and struggle to connect with their Māori identity.57

⁵² 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]; Andrea Mulligan “Protecting Identity in Collaborative Assisted Reproduction: The Right to Know One’s Gestational Surrogate” (2020) 34 International Journal of Law, Policy and The Family 20; 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; International Principles for Donor Conception and Surrogacy (November 2019) at arts 3 and 8– 11; 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] and [10.78]; 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 Dissertation, Leiden University, 2018) at ch 8.

⁵³ 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).

⁵⁴ UNICEF and Child Identity Protection Key Considerations: Children’s Rights & Surrogacy (Briefing Note, February 2022) at 2.

⁵⁵ 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].

⁵⁶ 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].

⁵⁷ See for example discussion of Dr Erica Newman’s research on the impact of the Adoption Act 1955 on the identity of descendants of Māori adoptees yet to connect to their taha Māori in Bruce Munro “No mountain, no river” Otago Daily Times (New Zealand, 7 February 2022) and Alice Webb-Liddall “Finding whakapapa: The generational trauma of closed Māori adoptions” The Spinoff (New Zealand, 18 March 2021). See also Kim Mcbreen “Cast adrift: My story of adoption” E-Tangata (New Zealand, 6 February 2022); Annabel Ahuriri-Driscoll “Ka Tū te Whare, Ka Ora: The Constructed and

• 3.39 In 2005, the Commission observed similar concerns arising in relation to the use of anonymous donors:58

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.

• 3.40 Studies consistently report that most donor-conceived people have an interest in securing information about their genetic and biographical heritage.59 Research involving donor-conceived people using DNA databases to connect with donors has illustrated that non-disclosure can have detrimental impacts on donor-conceived people when the truth is revealed, sometimes in accidental or unplanned ways.60 A recent study exploring the experience and wellbeing of donor-conceived people born in Aotearoa New Zealand before the introduction of the Human Assisted Reproductive Technology Act 2004 (HART Act) has found that there is a need to prioritise the long-term wellbeing of those who are donor-conceived.61 Participants in that study expressed the belief that their needs and wishes had often come second to those of parents, donors and the fertility industry.62 They expressed the need for openness to prioritise the wellbeing of donor- conceived people.63
• 3.41 This research suggests that, in the surrogacy context, a child’s right of access to origins as well as their long-term wellbeing may be undermined if they are not given information about their genetic and gestational origins appropriate to their age and understanding.
• 3.42 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.64 Anonymous gamete donations through fertility clinics are no longer

Constructive Identities of the Māori Adoptee” (PhD Dissertation, Te Whare Wānanga o Waitaha | University of Canterbury, 2020); Cherryl Smith “Tamaiti Whāngai and Fertility” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 143 at 170–173; and Maria Haenga Collins “Belonging and Whakapapa: The Closed Stranger Adoption of Māori Children into Pākehā Families” (PhD Dissertation, Te Kunenga Ki Pūrehuroa | Massey University, 2011).

⁵⁸ 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 Allan 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).

⁵⁹ Eric Blyth and others “Donor-conceived people’s views and experiences of their genetic origins: A critical analysis of the research evidence” (2012) 19 Journal of Law and Medicine 769.

⁶⁰ Lucy Frith and others “Secrets and disclosure in donor conception” (2017) 40 Sociology of Health & Fitness 188; Lucy Frith and others “Searching for ‘relations’ using a DNA linking register by adults conceived following sperm donation” (2018) 13 BioSocieties 170 as cited in Marilyn Crawshaw and Ken Daniels “Revisiting the use of ‘counselling’ as a means of preparing prospective parents to meet the emerging psychosocial needs of families that have used gamete donation” (2019) 8 Families, Relationships and Societies 395 at 396.

⁶¹ Samantha Best “The experience and wellbeing of donor-conceived adults” (MHSc dissertation, Te Wānanga Aronui o Tāmaki Makau Rau | Auckland University of Technology, 2021) at 77–79.

⁶² Samantha Best “The experience and wellbeing of donor-conceived adults” (MHSc dissertation, Te Wānanga Aronui o Tāmaki Makau Rau | Auckland University of Technology, 2021) at 79.

⁶³ Samantha Best “The experience and wellbeing of donor-conceived adults” (MHSc dissertation, Te Wānanga Aronui o Tāmaki Makau Rau | Auckland University of Technology, 2021) at 82.

⁶⁴ 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).

permitted in Aotearoa New Zealand,65 and Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 (Ngā Paerewa) requires fertility service providers to encourage and support people to inform surrogate-born children of their genetic and gestational origins.66

• 3.43 New Zealanders’ changing attitudes are likely due in part to the influence of tikanga Māori and the significance of whakapapa in New Zealand society, particularly for Māori.67 In one retelling, the quest of Māui to find and seek acceptance from his parents and siblings after being raised by Tangaroa68 illustrates how important knowledge of whakapapa can be to a Māori person. It shows how identity can be impacted as a result of being born in unique circumstances. In the whāngai context, it has been suggested that the open transmission of whakapapa knowledge is key to making complex, wider notions of parenting work, given the diversity of Māori whānau, and that there needs to be an openness about whānau, hapū and iwi origins.69 As we said in the Issues Paper, this means that ensuring the identity of a surrogate-born child is nurtured and protected is significant for Māori.
• 3.44 However, not all cultures assign the same importance to children’s identity rights. In many countries, the use of anonymously donated gametes remains the cultural norm. Some people may also face social, cultural and religious stigma and disapproval for using surrogacy to build their family. This could result in a reluctance to share information with a surrogate-born child about their genetic and gestational origins.70 Others may fear that disclosure would endanger their relationship with their child or impact on their wellbeing.71
• 3.45 The ongoing use of anonymous donors in other countries also has implications for New Zealanders who pursue international surrogacy. As we note in Chapter 2, just under half of international surrogacy arrangements entered into by New Zealanders in the past six years (48 out of 98) 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 has noted that:72

⁶⁵ Human Assisted Reproductive Technology Act 2004, s 47 requires providers to obtain identifying information about the donor.

⁶⁶ Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 at [1.10.1].

⁶⁷ 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.

⁶⁸ Kirsten Aroha Linda Gabel “Poipoia te tamaiti ki te ūkaipō” (PhD Dissertation, Te Whare Wānanga o Waikato | University of Waikato, 2013) at 63–64.

⁶⁹ Cherryl Smith “Tamaiti Whāngai and Fertility” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 143 at 201. See also Leonie Pihama “Experiences of Whānau Māori within Fertility Clinics” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 203 at 205.

⁷⁰ See for example in the context of donor conception: Marilyn Crawshaw and Ken Daniels “Revisiting the use of ‘counselling’ as a means of preparing prospective parents to meet the emerging psychosocial needs of families that have used gamete donation” (2019) 8 Families, Relationships and Societies 395 at 399.

⁷¹ This has been observed in the context of donor-conceived families: Elia Wyverkens, Hanna Van Parys and Ann Buysse “Experiences of Family Relationships Among Donor-Conceived Families: A Meta-Ethnography” (2014) Qualitative Health Research 1 at 13.

⁷² 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: 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].

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.

• 3.46 Te Kāhui Ture o Aotearoa | New Zealand Law Society (NZLS) in its submission on the Issues Paper said that the right to identity is a central issue that has arisen in many surrogacy cases. It acknowledged that this concept is likely to present challenges in finding a balance between the ability to access donors and ensuring surrogate-born children are afforded the greatest opportunity to have information on their identity. Nevertheless, NZLS considered this right reflects the emphasis in Aotearoa New Zealand on whakapapa as a primary cultural principle for Māori.
• 3.47 NZLS also noted emerging concerns for children when intended parents participate in multiple surrogacy arrangements:

Currently, a number of parents engaging in international surrogacy arrangements engage two surrogates at the same time (or in quick succession). For some this relates to the savings arising from engaging a clinic only once. For others, it affords the opportunity to create their entire family at one time. However, this almost invariably results in siblings being born within weeks of each other, raising questions as to their origins during their young life and at school. In our view, this is a matter which can be minimised through greater education and awareness at a pre-conception stage for intended parents.

• 3.48 In Chapter 5, we explore how a surrogate-born child’s rights to identity should be protected and promoted as part of the approval process for domestic surrogacy arrangements. In Chapter 7, we consider what information about a surrogate-born person’s genetic and gestational origins and whakapapa should be preserved by the state on a surrogacy birth register for the surrogate-born person to access in future. This would provide for situations where identity information has not otherwise been shared with the child. In relation to whakapapa information, we recommend recording any hapū and iwi affiliations of the surrogate, to the extent this information is known. This, along with the surrogate’s name, date of birth and place of birth, will ensure, in the case of traditional surrogacy, that a surrogate-born person is able to learn of their whakapapa. In the case of a gestational surrogacy, this information will provide the surrogate-born person with important information about those people involved in their creation. We do not propose further information about a surrogate’s whakapapa should be recorded by the state. We suggest such information should be shared with the child in accordance with the whakawhanaungatanga responsibilities of the surrogate and her whānau, hapū or iwi (see Chapter 2).
• 3.49 Our recommendations in relation to the surrogacy birth register apply to all surrogacy arrangements, including gestational and traditional surrogacy arrangements as well as international surrogacy arrangements where a parentage order is issued (see Chapter 9).

Rights to nationality

• 3.50 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. 73

⁷³ 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.

• 3.51 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.74 As we explore in Chapter 9, if a child is born 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.
• 3.52 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

• 3.53 UNCROC places strong emphasis on maintaining family life and preventing separation from parents unless it is in the best interests of the child.75 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.76 It considers it is “vital to maintain a very high threshold for the justification of a separation in accordance with international norms and standards”.77
• 3.54 Even in domestic surrogacy arrangements, the relationship between the surrogate-born child and the intended parents is precarious under current law, 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 6.

Rights to health

• 3.55 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 healthcare services.78
• 3.56 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 or lacks New Zealand citizenship may encounter barriers when attempting to

⁷⁴ 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.

⁷⁵ 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.

⁷⁶ 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).

⁷⁷ 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].

⁷⁸ 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.

access healthcare,79 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

• 3.57 Children are entitled to the rights set out in UNCROC without discrimination on specified grounds, including “birth or other status”.80 The UN Special Rapporteur explains that:81

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

• 3.58 Aotearoa New Zealand also has international human rights obligations to take appropriate measures to protect children from abuse and exploitation.82
• 3.59 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.83
• 3.60 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 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

⁷⁹ Te Kāhui Ture o Aotearoa | New Zealand Law Society observed in its submission that the experience of lawyers working with intended parents is that limitations on the right to health have arisen based on the ability to demonstrate a genetic link to the parent who has New Zealand citizenship or residency.

⁸⁰ 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. See also Universal Declaration of Human Rights GA Res 217A (1948), art 25(2).

⁸¹ 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].

⁸² 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).

⁸³ 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.

transferring a child to the intended parents after birth.84 UNICEF and Child Identity Protection state that:85

Sale and trafficking of children born through surrogacy is occurring, especially in [International Surrogacy Agreements], due to a lack of protective safeguards being implemented by States. A legally binding contractual relationship between the surrogate mother and the intending parent(s) established pre-birth, in which the transfer of the child would be made conditional upon payment, would constitute the sale of a child ... The identity and family relations of a child cannot be for sale.

• 3.61 UNICEF and Child Identity Protection as well as the UN Special Rapporteur and the Verona Principles highlight the need for appropriate safeguards and oversight mechanisms in order to guard against the risk of the sale and trafficking of children.86

Human rights of surrogates

• 3.62 The surrogate’s human rights to personal autonomy, including bodily integrity and reproductive freedom,87 are central considerations in the regulation of surrogacy.88 For the surrogate to enjoy these rights, she must be able to make free and informed decisions

⁸⁴ 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].

⁸⁵ UNICEF and Child Identity Protection Key Considerations: Children’s Rights & Surrogacy (Briefing Note, February 2022) at 2.

⁸⁶ 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].

⁸⁷ 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). The right to refuse to undergo any medical treatment, which is an aspect of the general right to health, is enshrined in the New Zealand Bill of Rights Act 1990, s 11.

⁸⁸ 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 211–212. Powell and Baird also explore the surrogate’s rights to privacy, work and freedom from discrimination in 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).

in relation to the surrogacy arrangement, and her pregnancy and birth.89 There must also be sufficient regulatory protections in place to protect her from exploitation.90

• 3.63 Women who act as surrogates are often considered to be at risk of exploitation, especially in international commercial surrogacy arrangements.91 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.
• 3.64 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”.92 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 countries with more stable legal systems, 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.93
• 3.65 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.94 Family Planning New Zealand, in its submission on the Issues Paper, explained that some people are far more likely to

⁸⁹ 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 27-28; 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 [8.96]–[8.100].

⁹⁰ See UNICEF and Child Identity Protection Key Considerations: Children’s Rights & Surrogacy (Briefing Note, February 2022) at 1; 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) at [25]–[26].

⁹¹ 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 211–212. 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 [27]. The risk of exploitation of surrogates was also raised

by several submitters in consultation, including Family Planning New Zealand, New Zealand College of Midwives and the Royal Australian and New Zealand College of Obstetricians and Gynaecologists.

⁹² 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).

⁹³ 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.

⁹⁴ Te Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at [7.64].

experience discrimination and powerlessness in society, and surrogacy law and regulation must specifically seek to protect those most vulnerable to power imbalances, including women living in poverty, women experiencing violence and women who experience racial and other forms of discrimination. Power imbalances in the context of surrogacy may also mean that surrogates come under external pressure to agree to tests or procedures they would otherwise choose not to do. 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.95

• 3.66 There is no consensus on whether the surrogate’s human rights require surrogacy to be prohibited or limited to altruistic surrogacy only.96 As we note in Chapter 1, commercial surrogacy is often opposed on the basis that it risks the exploitation of women who act as surrogates. However, some argue that commercial surrogacy promotes surrogates’ right to autonomy and that prohibiting commercial surrogacy creates conditions for exploitation.97 We explore the need for safeguards to protect surrogates’ autonomy and protect them from exploitation in Chapter 6 and Chapter 8.

Human rights of intended parents

• 3.67 International human rights instruments recognise that the family is the natural and fundamental group in society.98 Intended parents enjoy rights to found a family99 and rights to respect for their private and family life.100 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”.101

⁹⁵ 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. See also for example Tom Blackwell “Canadian surrogate eliminated baby from triplet pregnancy at urging of overseas couple” National Post (online ed, Canada, 9 September 2015).

⁹⁶ As noted at [3.28], n 39 above, ethical considerations as to whether surrogacy in any form should be permitted or prohibited fall outside the scope of the Verona Principles: International Social Service Principles for the protection of the rights of the child born through surrogacy (Verona principles) (Geneva, 2021) at 8.

⁹⁷ See for example Ronli Sifris “Commercial surrogacy and the human right to autonomy” (2015) 23 JLM 365 at 366; 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. This view was also expressed by some submitters in consultation.

⁹⁸ International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), art 23(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), preamble; and Universal Declaration of Human Rights GA Res 217A (1948), art 16(3).

⁹⁹ 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).

¹⁰⁰ 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).

¹⁰¹ 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.

• 3.68 Intended parents should be able to enjoy these rights without discrimination on grounds such as sex, gender, marital status or sexual reorientation.102 Intended parents who experience disability should also be enabled to enjoy their rights to family without discrimination.103 These are important considerations given that surrogacy may be the only opportunity for some single men, male couples, trans people and disabled people to have a child that is genetically related to them.
• 3.69 Because children are individual rights holders104 and given that surrogacy involves decisions by each of those involved in the arrangement,105 there is no unqualified right to have a child by surrogacy. Rather, intended parents should have the freedom to do so provided the rights of others, in particular the rights of the child and the surrogate, are adequately protected.106
• 3.70 As we observed in the Issues Paper, intended parents also face the risk of exploitation in surrogacy arrangements. 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:107

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.

• 3.71 Intended parents may be more vulnerable in international commercial surrogacy arrangements, especially if 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 parents108 and of clinic errors and practices where intended parents arrange for the child to be conceived using their

¹⁰² 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.

¹⁰³ 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.

¹⁰⁴ 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].

¹⁰⁵ 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].

¹⁰⁶ 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].

¹⁰⁷ 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).

¹⁰⁸ 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.

gametes only to discover, after the child’s birth, that they have no genetic link to the child.109

RESULTS OF CONSULTATION

• 3.72 In the Issues Paper, we proposed six guiding principles for surrogacy law reform, based on the rights and interests arising from tikanga, the Treaty and human rights law:

(a) The best interests of the surrogate-born child should be paramount.

(b) Surrogacy law should respect the autonomy of consenting adults in their private lives.

(c) Effective regulatory safeguards must be in place.

(d) Parties should have early clarity and certainty about their rights and obligations.

(e) Intended parents should be supported to enter surrogacy arrangements in Aotearoa New Zealand rather than offshore.

(f) Surrogacy law should enable Māori to act in accordance with tikanga and promote responsible kāwanatanga that facilitates tino rangatiratanga.

• 3.73 We asked submitters whether they agreed with these guiding principles and, if not, what changes they would make.
• 3.74 There was strong support for the proposed guiding principles. We received 192 submissions that addressed this question, and of these, 84 per cent either agreed (61 per cent)110 or agreed in part (23 per cent)111 with the proposed guiding principles. Of the 15 per cent of submitters who did not agree,112 most were either generally opposed to surrogacy in principle or supported tightening restrictions on surrogacy on ethical and religious grounds. We explore some key comments from these submissions below.

CONCLUSIONS

• 3.75 Having considered the rights and interests engaged in the surrogacy context, and the feedback from consultation, we conclude that the following five principles should underpin surrogacy law reform in Aotearoa New Zealand:

¹⁰⁹ 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 Parentage and the Issues arising from International Surrogacy Arrangements (Preliminary Document No 3C, March 2014, The Hague) at [189].

¹¹⁰ 118 submissions comprising 103 personal submissions, 12 submissions from organisations (Advisory Committee on Assisted Reproductive Technology, Federation of Women’s Health Councils, Fertility Associates, Fertility New Zealand, Fertility Plus, National Council of Women of New Zealand, New Zealand Council of Trade Unions, New Zealand Nurses Organisation, Office of the Health and Disability Commissioner, Oranga Tamariki | Ministry for Children, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society) and 3 academic submissions (Adjunct Professor Ken Daniels, Dr Liezl van Zyl and Dr Ruth Walker (submitting jointly) and Associate Professor Rhonda Shaw).

¹¹¹ 45 submissions comprising 38 personal submissions, 5 submissions from organisations (Ethics Committee on Assisted Reproductive Technology, Family Planning New Zealand, Maternity Services Consumer Council, New Zealand College of Midwives and Office of the Children’s Commissioner), comments from the Judges of the Family Court and 1 academic submission (Dr Anne Else).

¹¹² 29 submissions comprising 25 personal submissions and 4 submsisions from organisations (Auckland Women’s Health Council, Center for Bioethics and Culture Network, Feminist Legal Clinic and International Coalition for Abolition of Surrogate Motherhood).

• Principle 1: Surrogacy law should reflect the Crown’s obligations under te Tiriti o Waitangi to exercise kāwanatanga in a responsible manner, including facilitating the exercise of tino rangatiratanga by Māori in the context of surrogacy.
• Principle 2: The best interests of the surrogate-born child should be paramount.
• Principle 3: Surrogacy law should support surrogates and intended parents to enter surrogacy arrangements that protect and promote their health, safety, dignity and human rights.
• Principle 4: Parties in a surrogacy arrangement should have early clarity and certainty about their rights and obligations.
• Principle 5: New Zealand intended parents should be supported to enter surrogacy arrangements in Aotearoa New Zealand rather than offshore.

• 3.76 These principles largely reflect the proposed guiding principles in the Issues Paper with some modifications to clarify our approach, including in response to some of the consultation feedback. This includes combining the previously separate principles relating to respecting the autonomy of consenting adults in their private lives and ensuring effective regulatory safeguards are in place into Principle 3, discussed below.
• 3.77 These guiding principles for surrogacy law reform underpin our recommendations for reform in this Report. We have not recommended making these statutory principles. Statutory principles can be helpful guides for decision-making under legislation.113 However, we do not recommend a standalone Surrogacy Act for the reasons we explain in Chapter 6. In that chapter, we instead recommend providing specific guidance for te Kōti Whānau | Family Court when determining a parentage order application. We have developed this guidance having considered the existing statutory principles that underpin decision-making under the HART Act, the Care of Children Act 2004 and the Oranga Tamariki Act 1989.114 In Chapter 7, we recommend amending the principles of the HART Act to better reflect the rights of surrogate-born people, consistent with our guiding principles for surrogacy law reform.

Principle 1: Surrogacy law should reflect the Crown’s obligations under te Tiriti o Waitangi to exercise kāwanatanga in a responsible manner, including facilitating the exercise of tino rangatiratanga by Māori in the context of surrogacy

• 3.78 Consistent with the approach we took in our Succession Report, we conclude that surrogacy law should reflect the Crown’s obligations under te Tiriti o Waitangi to exercise kāwanatanga in a responsible manner, which includes facilitating the exercise of tino rangatiratanga by Māori in the context of surrogacy.115

¹¹³ Legislation Design Advisory Committee Supplementary Material: Design purpose provisions and statements of principle

(2019) at 6.

¹¹⁴ Human Assisted Reproductive Technology Act 2004, s 4; Care of Children Act 2004, ss 4–5; Oranga Tamariki Act 1989, ss 4A and 5.

¹¹⁵ 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 R145, 2021), at R4a and [2.122]–[2.124].

• 3.79 In the Succession Report, we concluded that responsible kāwanatanga required us to approach our recommendations for weaving new succession law from three separate starting points:116

(a) First, state law should facilitate tino rangatiratanga through recognising tikanga Māori where that is necessary, in light of the commitment in te Tiriti, to enable Māori to live according to tikanga.

(b) Second, state law should weave new law that reflects tikanga Māori and other values shared by New Zealanders (a “third law”).

(c) Third, kāwanatanga should recognise its own limits in particular contexts by not applying state law and allowing tikanga to prevail.

• 3.80 In the surrogacy context, we consider that the Crown’s first step in meeting this principle is reflected by our first recommendation, set out in Chapter 2, that the Government commission research led by Māori to provide a better understanding of tikanga Māori and surrogacy and Māori perspectives on surrogacy in practice. This would provide Māori an opportunity to consider tikanga in the context of surrogacy and to explore Māori attitudes to surrogacy. In Chapter 2, we identify and discuss some core tikanga principles to provide context to our consideration of the practice of surrogacy.
• 3.81 Acknowledging this material and in light of submissions we received on the Issues Paper,117 we have concluded that exercising responsible kāwanatanga and facilitating the exercise of tino rangatiratanga by Māori in the surrogacy context requires the following:

(a) First, ensuring that state law enables Māori to act in accordance with tikanga should Māori wish to do so. As noted above, this requires an understanding of how te ao Māori might engage with and respond to surrogacy so that matters that may be of particular concern can be identified and addressed. In Chapter 5 and Chapter 6, we address ways to support Māori to act in accordance with tikanga when participating in a surrogacy arrangement. This includes recognising that intended parents may wish to parent as mātua whāngai and ensuring that information and counselling has been culturally appropriate from an ao Māori perspective. Recognising and respecting whāngai arrangements also demonstrates that responsible kāwanatanga should recognise its own limits in particular contexts by not applying state law and allowing tikanga to prevail.

(b) Second, weaving new law that reflects tikanga Māori and other values shared by New Zealanders. We think that prioritising the best interests of a surrogate-born child is not only consistent with New Zealand’s human rights commitments but also with tikanga. Given the significance of genetic and gestational origins for all surrogate- born people, we make recommendations in Chapter 7 for identity information to be preserved and recorded by the state. This recognises and builds on the significance of whakapapa for Māori children and their whānau, hapū and iwi, showing the shared significance for all New Zealanders of identity information.

¹¹⁶ 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 R145, 2021), at [2.125]–[2.130].

¹¹⁷ We received 151 submissions that engaged with Māori and surrogacy (Chapter 4 of the Issues Paper). We refer to these submitters’ views on the matters of particular concern to Māori throughout this Report. Submissions that did not engage with Māori and surrogacy, including submissions that answered no questions on this topic, responded “no comment” or consistently selected “no view” to all Māori and surrogacy questions on the consulation website, are not counted in our analysis of submissions on these questions.

(c) Third, addressing inequities in access to surrogacy. In Chapter 2, we note that evidence suggests Māori uptake of surrogacy is low. Te Tiriti places an obligation on the Crown to ensure that health services are culturally appropriate and kaupapa Māori services are available to Māori in a way that they are not disadvantaged by their choices. We consider ways to address these matters in Chapter 10.

(d) Fourth, promoting tino rangatiratanga in decision-making by recommending better representation of Māori on the Ethics Committee on Assisted Reproductive Technology (ECART) and the Advisory Committee on Assisted Reproductive Technology (see Chapter 5).

Principle 2: The best interests of the surrogate-born child should be paramount

• 3.82 Because surrogacy arrangements are concerned with the creation of a child, that child’s best interests should be paramount in surrogacy law. This accords with UNCROC and with the approach in other child-focused legislation in Aotearoa New Zealand.118 We also suggest that this principle can be considered consistent with tikanga Māori, as we discuss in Chapter 2.119
• 3.83 Principle 2 is consistent with the emerging international consensus, as highlighted above, and with the approach taken in other comparable jurisdictions.120 In Australia, for example, state legislation often adopts the principle that the best interests of the surrogate-born child are paramount.121
• 3.84 As we explained in the Issues Paper, 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 implications of surrogacy for the child.122 Some submitters suggested that the child’s welfare or wellbeing and other specific UNCROC rights relevant

¹¹⁸ Care of Children Act 2004, s 4; Oranga Tamariki Act 1989, s 4A; and Adoption Act 1955, s 11(b). See also Oranga Tamariki Act, s 5, which makes explicit reference to the child’s or young person’s rights under the United Nations Convention on the Rights of the Child.

¹¹⁹ This approach is consistent with the view expressed by Te Hunga Rōia Māori o Aotearoa (THRMOA) in its submission on Te Tāhū o te Ture | Ministry of Justice’s review of adoption laws: Te Hunga Rōia Māori o Aotearoa Ngā tāpaetanga a Te Hunga Rōia Māori o Aotearoa | Submissions of Te Hunga Rōia Māori o Aotearoa to Adoption Reform Committee (6 September 2021). THRMOA submitted, at [5]:

The Government’s intention to review Aotearoa’s adoption laws is a positive step forward in an area long overdue for reform. In particular, in order to uphold Te Tiriti o Waitangi, any new legislation needs to be ‘child-centred’. In this way we better align with tikanga Māori and also Aotearoa’s international obligations under the United Nations Convention on the Rights of the Child (UNCROC) and the United Nations Declaration on the Rights of Indigenous People (UNDRIP).

¹²⁰ See for example discussion 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 8–11; 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 119–121; 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]; House of Representatives Standing Committee on Social Policy and Legal Affairs Surrogacy Matters: Inquiry into the regulator and legislative aspects of international and domestic surrogacy arrangements (The Parliament of the Commonwealth of Australia, April 2016) at [1.30]; and Manitoba Law Reform Commission Assisted Reproduction: Legal Parentage and Birth Registration — Issue Paper (2014) at 23.

¹²¹ The paramountcy principle is variously expressed as applying to the child’s “best interests”: Surrogacy Act 2019 (SA), s 6(1), Surrogacy Act 2010 (NSW), s 3, and Surrogacy Bill 2022 (50) (NT), cl 5; the child’s “wellbeing and best interests”: Surrogacy Act 2012 (Tas), s 3(1), and Surrogacy Act 2010 (Qld), s 6(1); and the child’s “welfare and interests”: Assisted Reproductive Treatment Act 2008 (Vic), s 5(a).

¹²² International Social Service Principles for the protection of the rights of the child born through surrogacy (Verona principles) (Geneva, 2021) at [6.1].

to surrogacy, such as the right to identity, should be given more explicit recognition in the guiding principles. Our approach, however, is that this principle requires providing for the child’s wellbeing and the other rights recognised under UNCROC and explored above.123 As the United Nations Committee on the Rights of the Child explained in General Comment No. 14 (2013):124

The concept of the child’s best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child. The Committee has already pointed out that “an adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention.” It recalls that there is no hierarchy of rights in the Convention; all the rights provided for therein are in the “child’s best interests” and no right could be compromised by a negative interpretation of the child’s best interests.

• 3.85 In the surrogacy context, the UN Special Rapporteur has explained that:125

... in addition to giving full effect to the main parameters outlined in general comment No. 14 (2013), the best interests of the child must be ensured, at a minimum, by providing certainty of identity; of status; and of parenthood.

• 3.86 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.

Principle 3: Surrogacy law should support surrogates and intended parents to enter surrogacy arrangements that protect and promote their health, safety, dignity and human rights

• 3.87 Principle 3 reflects our view that the state should have a role in supporting individuals who are contemplating surrogacy arrangements to ensure that they enter arrangements that protect and promote their health, safety, dignity and rights. This principle reflects the language of the HART Act126 and acknowledges that surrogacy engages a range of rights and interests that must be carefully considered in the regulation of surrogacy.127 While available research suggests that most surrogacy arrangements will be positive

¹²³ See for example Surrogacy Bill 2022 (50) (NT), cl 5. This states that the paramount consideration in respect of the administration and operation of the Act is the best interests of any child born under a surrogacy arrangement. A drafting note to this clause explains that “[t]he best interests of a child include the child’s safety and wellbeing and the right to know the child’s origins”.

¹²⁴ 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]. See also [71]:

When assessing and determining the best interests of a child or children in general, the obligation of the State to ensure the child such protection and care as is necessary for his or her well-being (art. 3, para. 2) should be taken into consideration. ... Children’s well-being, in a broad sense includes their basic material, physical, educational, and emotional needs, as well as needs for affection and safety.

¹²⁵ 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]. UNICEF and Child Identity Protection also explain that a best interest determination in any surrogacy arrangement should consider not only the best interests of the child but also the child’s full range of rights: UNICEF and Child Identity Protection Key Considerations: Children’s Rights & Surrogacy (Briefing Note, February 2022) at 3.

¹²⁶ Human Assisted Reproductive Technology Act 2004, s 3(a) states that a purpose of that Act is:

to secure the benefits of assisted reproductive procedures, established procedures, and human reproductive research for individuals and for society in general by taking appropriate measures for the protection and promotion of the health, safety, dignity, and rights of all individuals, but particularly those of women and children, in the use of these procedures and research:

¹²⁷ For a discussion of the relationship between the concepts of mana and dignity see: Mihiata Pirini and Anna High “Dignity and Mana in the “Third Law” of Aotearoa New Zealand” (2021) 29 NZULR 623.

experiences for the surrogate and intended parents (see Chapter 2), they are nonetheless inherently vulnerable and effective regulatory safeguards are necessary.128

• 3.88 In the Issues Paper, we had expressed this principle differently as two separate principles (surrogacy law should respect the autonomy of consenting adults in their private lives and sufficient safeguards should be in place). We acknowledge the views of some submitters that the focus on autonomy separate to the need for safeguards could be misconstrued and that the objective of safeguards should be clearer. We think that merging these principles and adopting the language of the HART Act is a clearer expression of our intentions and reduces the scope for confusion.
• 3.89 We intend, by the broader language of “health, safety, dignity and human rights”, to capture the range of rights identified above, including but not limited to rights related to autonomy as well as equality and non-discrimination rights, rights to respect cultural identity, and health and disability rights. As with Principle 2, we suggest that this principle can be considered consistent with tikanga (see Chapter 2).129
• 3.90 This guiding principle requires consideration of the health, safety, dignity and rights of the surrogate and the intended parents. We acknowledge the views of some submitters that the rights and interests of the surrogate should be more expressly protected. We also note the acknowledgment in the HART Act that “women, more than men, are directly and significantly affected by [the application of assisted reproductive procedures], and the health and well-being of women must be protected in the use of these procedures”.130 However, we are also conscious of the strong views of some submitters, many of them intended parents, who feel that their rights and interests are often overlooked or minimised in the surrogacy context. Our view is that the rights and interests of all parties must be protected and promoted in the surrogacy context.

Principle 4: Parties to a surrogacy arrangement should have early clarity and certainty about their rights and obligations

• 3.91 There should be clarity and certainty, at the earliest possible time, about each party’s rights and obligations before, during and after a child is born as a result of a surrogacy arrangement. This will reduce the uncertainty and the risk of disagreements arising between the parties. This reflects a guiding principle recommended in the Commission’s 2005 Report, New Issues in Legal Parenthood, which remains just as relevant today.131

¹²⁸ The need for regulatory protections to guard against the potential for exploitation is recognised in other reviews. 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 [9.5.1]–[9.5.12]; 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), Recommendation 2.

¹²⁹ The reconciliation of whanaungatanga, mana and other tikanga with the rights of adults as surrogates and intended parents may be further explored in the research we recommend in R1 (see Chapter 2 of this Report).

¹³⁰ Human Assisted Reproductive Technology Act 2004, s 4(c).

¹³¹ 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), Recommendation 11; and Michael Gorton Helping

• 3.92 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. As the Commission observed in 2005:132

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.

• 3.93 Many submitters emphasised the need for pre-conception certainty. As Dr Anne Else observed in her submission on the Issues Paper:

Fundamentally this means that everyone involved should understand and agree on exactly what the planned surrogacy arrangement means, including the pathway to legal parenthood, being honest with the child, and contact plans post-birth, before they apply to ECART for approval.

• 3.94 As the Judges of the Family Court observed, it is important that decision-making occurs before the surrogacy process is under way and that legislation is unambiguous and prevents or diminishes the likelihood of future conflict.
• 3.95 This guiding principle must be balanced against the other guiding principles, including Principle 2 and Principle 3. This means that, while the benefits of early clarity and certainty have underpinned the recommendations in this Report, we have not prioritised clarity and certainty where that would fail to promote the child’s best interests or adequately protect and promote the human rights of the surrogate-born child, the surrogate or the intended parents.

Principle 5: New Zealand intended parents should be supported to enter surrogacy arrangements in Aotearoa New Zealand rather than offshore

• 3.96 New Zealanders should be supported to enter surrogacy arrangements in Aotearoa New Zealand. This guiding principle aims to reduce the need for intended parents to rely on international surrogacy to build their family by improving the conditions for domestic surrogacy arrangements.
• 3.97 As we explore in greater detail in Chapter 9, international surrogacy presents complex issues. The laws of two different countries must be considered, which can cause problems when intended parents bring the surrogate-born child back to Aotearoa New Zealand. The disparity in how different countries regulate surrogacy and legal parenthood mean that some international surrogacy arrangements lack the same protections for the child, the surrogate and the intended parents as an arrangement entered in Aotearoa New Zealand. This can potentially place the child and the parties at greater risk.

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), Recommendation 63. 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.

¹³² Te Aka Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC R88, 2005) at [1.20].

• 3.98 That said, international surrogacy is a present reality and will remain an option for New Zealand intended parents in the foreseeable future. As Ireland’s Special Rapporteur on Child Protection has observed:133

... there is no escaping the reality of surrogacy as an international phenomenon. ... global prohibition of all forms of surrogacy is not within the gift of any individual state or international organisation. It is also highly unlikely to arise on foot of an international convention, since a significant number of jurisdictions are accepting of the practice of surrogacy, either expressly authorising it or tolerating it on an unregulated basis.

• 3.99 In response to the potential risks posed by international surrogacy, efforts are taking place around the world to support citizens to pursue surrogacy within their own country rather than overseas.134
• 3.100 Supporting New Zealanders to enter surrogacy arrangements in Aotearoa New Zealand helps avoid the risks associated with international surrogacy and also ensures the following:

(a) Surrogacy arrangements are undertaken within a regulatory framework that recognises te Tiriti and has appropriate safeguards that uphold New Zealand’s 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 Ngā Paerewa and the Code of Health and Disability Services Consumers’ Rights.

(b) Surrogate-born children can access information about their genetic and gestational origins and whakapapa, 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 whanaungatanga and other 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, promoting whanaungatanga and manaakitanga.

(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 and the invasion of

¹³³ 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.

¹³⁴ 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. In 2022, the Irish Government established a Special Joint Oireachtas Committee to examine the issues surrounding international surrogacy: An Roinn Dlí argus Cirt | Department of Justice, Ireland “Government to establish Special Joint Oireachtas Committee on International Surrogacy” (press release, 21 January

2022). See also: 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.

Ukraine, both of which have had significant implications for some surrogacy arrangements.135

• 3.101 We acknowledge the mixed views this guiding principle received in consultation. Some submitters felt that international surrogacy should be more strongly discouraged given the potential for exploitation and commodification. However, some were also concerned that supporting domestic surrogacy over international surrogacy could lead to a weakening of domestic legal and regulatory safeguards in order to make it more attractive. On the other hand, Oranga Tamariki | Ministry for Children observed in its submission that:

... this [principle] will reduce the risk of the surrogate child becoming a stateless child and will provide greater certainty for intended parents in the approval of legal parenthood for their surrogate child. This principle also reflects the importance of whakapapa and the whanaungatanga responsibilities of whānau, hapū and iwi because a surrogacy arrangement in Aotearoa New Zealand will ensure that children can have better access to their identifying information, birth family, culture and heritage.

• 3.102 Our view is that this guiding principle involves addressing the current problems with surrogacy in Aotearoa New Zealand that may be driving intended parents overseas, such as the lack of a specific pathway to establish legal parenthood and lack of clarity around financial support for surrogates.
• 3.103 However, like Principle 4, this principle must be balanced against the other guiding principles. This means that, while this review intends to improve the conditions for domestic surrogacy arrangements in order to support New Zealand intended parents to enter surrogacy arrangements in Aotearoa New Zealand, we have not made recommendations that would achieve this objective at the expense of the best interests of the surrogate-born child or the rights of parties to the surrogacy arrangement. As commentators observe, regulation that relies on creating conditions that seek to encourage intended parents and surrogates to stay within the jurisdiction “may potentially result in the reduction of protection to the lowest common denominator”.136

¹³⁵ See for example Andrew E Kramer and Maria Varenikova “In a Kyiv Basement, 19 Surrogate Babies are Trapped by War but Kept Alive by Nannies” The New York Times (online ed, New York, 13 March 2022); Marion Langford “Aussie parents’ desperate journey to reach their premature baby daughter in Ukraine” NZ Herald (online ed, New Zealand, 27 February 2022); Simon Carswell “Irish couples awaiting surrogacy births in Ukraine face ‘daily horror’” The Irish Times (online ed, Dublin, 27 February 2022); Gill Bonnett “Covid turmoil stops parents reaching overseas surrogate babies” Radio New Zealand (New Zealand, 8 September 2020); and Maria Varenikova “Mothers, Babies Stranded in Ukraine Surrogacy Industry” The New York Times (online ed, New York, 15 August 2020).

¹³⁶ 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.

CHAPTER 4

Regulating surrogacy arrangements

INTRODUCTION

• 4.1 In this chapter, we examine the current requirement for prior approval of surrogacy arrangements in Aotearoa New Zealand. We look at how it is working in practice and conclude that this requirement should remain. We recommend what arrangements should be subject to a requirement for prior approval and reviewing the resourcing and operation of the approval process to ensure applications can be considered in a timely manner. In Chapter 5, we further examine discrete aspects of the approval process and make recommendations to improve its operation.

CURRENT LAW

• 4.2 Surrogacy arrangements are regulated by the Human Assisted Reproductive Technology Act 2004 (HART Act), which establishes a regulatory framework for assisted reproductive procedures and human reproductive research. Section 14 of the HART Act provides that a surrogacy arrangement “is not of itself illegal, but is not enforceable by or against any person”.1

Gestational surrogacy arrangements require prior approval

• 4.3 Under the HART Act, all “assisted reproductive procedures”, apart from procedures classified as “established procedures”, must be approved by the Ethics Committee on Assisted Reproductive Technology (ECART).2 Established procedures are defined in the Human Assisted Reproductive Technology Order 2005 (“HART Order”). A person who performs an assisted reproductive procedure without prior ECART approval commits an offence and is liable on conviction to a fine not exceeding $50,000.3
• 4.4 Surrogacy is not defined as an assisted reproductive procedure or an established procedure. However, because gestational surrogacy arrangements involve the use of an

¹ Human Assisted Reproductive Technology Act 2004, s 14(1).

² 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.

³ Human Assisted Reproductive Technology Act 2004, s 16.

assisted reproductive procedure (in vitro fertilisation), they will usually require ECART approval.4

• 4.5 Traditional surrogacy arrangements only involve the use of an established procedure (artificial insemination) and therefore do not require ECART approval.5 Traditional surrogacy arrangements can take place privately, without the involvement of 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.6
• 4.6 The legislative history to the HART Act reveals little discussion about requiring ECART approval in surrogacy arrangements.7 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”.8

The approval process

• 4.7 ECART considers and determines all applications for approvals for the performance of assisted reproductive procedures, including gestational surrogacy arrangements.9 ECART is a committee established by the Minister of Health.10 It comprises 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.11 At least two ECART members must be Māori, with “a recognised awareness of te reo Māori, and an understanding of tikanga Māori”.12 We discuss the composition of ECART and the Advisory Committee on Assisted Reproductive Technology (ACART) in greater detail in Chapter 5.
• 4.8 In performing its functions, ECART must operate:13

⁴ 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), sch 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”).

⁵ Human Assisted Reproductive Technology Order 2005, sch pt 1.

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 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).

⁷ See discussion in Debra Wilson “Surrogacy in New Zealand” [2016] NZLJ 401 at 401–402.

⁸ 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.

⁹ Human Assisted Reproductive Technology Act 2004, s 28(1)(a).

¹⁰ Human Assisted Reproductive Technology Act 2004, s 27.

¹¹ 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].

¹² Ethics Committee on Assisted Reproductive Technology Terms of Reference at 5.

¹³ Human Assisted Reproductive Technology Act 2004, s 29.

(a) in accordance with guidelines issued ACART;14 and

(b) “expeditiously, having regard, in particular, to the effect that undue delay may have on the reproductive capacity of individuals”.

• 4.9 ECART must also be guided by the principles of the HART Act, which are as follows:15

(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:

(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.

The ACART Guidelines

• 4.10 In 2020, ACART issued revised guidelines that set out the requirements that must be met before ECART can approve an application involving gestational surrogacy (ACART Guidelines).16
• 4.11 The ACART Guidelines require all parties to a prospective surrogacy arrangement to have received the following:

(a) Counselling. All affected parties must have received joint and individual counselling.17 Counselling must be provided by a person who is eligible to be an Australian and New Zealand Infertility Counsellors Association (ANZICA) approved counsellor.18 The counsellors must provide a report to ECART as part of the application process that addresses a range of matters outlined in the ACART Guidelines.19

¹⁴ 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.

¹⁵ Human Assisted Reproductive Technology Act 2004, s 4.

¹⁶ 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).

¹⁷ 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(4)].

¹⁸ Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 at [1.10.5].

¹⁹ 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(6)]–[I(7)].

(b) Legal advice. Each party must receive independent legal advice.20 The lawyer must report to ECART that the parties understand the legal implications of the procedure(s).21 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.22 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.

(c) Medical advice. All parties must have received independent medical advice.23 Health reports must show the parties understand the health implications of the procedure(s).24

• 4.12 In addition, ECART requires the intended parents to obtain in-principle approval from Oranga Tamariki | Ministry for Children to their adoption of any child resulting from the surrogacy arrangement.25 As we explain in Chapter 6, 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 te Kōti Whānau | 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.26 ECART requires prior in-principle approval from Oranga Tamariki before it approves a surrogacy arrangement to ensure there are no impediments to the intended parents adopting the child. We address Oranga Tamariki’s role in surrogacy arrangements in Chapter 5 and Chapter 6.
• 4.13 Under the ACART Guidelines, ECART can only approve an application relating to surrogacy if satisfied that the following requirements are met:

²⁰ 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)].

²¹ 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)].

²² Ethics Committee on Assisted Reproductive Technology Surrogacy Arrangements involving Providers of Fertility Services: Application Form (2011), sections 7 and 8.

²³ 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)].

²⁴ 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)].

²⁵ If this approval has not been obtained, ECART may defer the application or make its approval conditional on Oranga Tamariki | Ministry for Children’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.

²⁶ Adoption Act 1955, ss 10 and 11.

(a) All relevant parties have consented to the procedure, and the parties have not been subjected to any undue influence.27 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.28 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.29 On rare occasions, ECART might defer or decline an application due to concerns about the short length of the parties’ relationship.30

(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.31 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.32 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 a mandatory requirement under the ACART Guidelines,33 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”.34

²⁷ 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)].

²⁸ 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).

²⁹ Rhonda M Shaw “Should Surrogate Pregnancy Arrangements be Enforceable in Aotearoa New Zealand?” (2020) 16 Policy Quarterly 18 at 21.

³⁰ 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 8 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.

³¹ 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)].

³² 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)].

³³ 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.

³⁴ 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.

(d) The potential genetic, social, cultural and intergenerational aspects of the proposed arrangement as well as the relationships between the parties, safeguard the wellbeing of all parties and especially any resulting children.35

(e) The risks associated with the proposed surrogacy arrangement for the parties and any resulting child must be justified.36 This includes risks to the health and wellbeing 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 parents safeguard the health and wellbeing of the child, particularly in relation to being born in Aotearoa New Zealand.37 This requirement was introduced in 2020 because of “the possibility that some children born to overseas surrogates could, in theory, be stateless”.38

Current practice

• 4.14 In practice, applications to ECART are made by a fertility clinic on behalf of the intended parents. This is not a strict legal requirement, but the HART Act does require applications to nominate an appropriate person to be responsible for the activity,39 and if approval is given, it is limited to that nominated person performing the procedure.40 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 the safety and quality requirements set out in Ngā Paerewa Health and Disability Services Standard NZS 8134:2021.
• 4.15 Since 2005, the number of surrogacy applications considered by ECART each year has increased significantly. ECART considers more surrogacy applications than any other type of application, and they account for over half of all applications it considers.41

³⁵ 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)].

³⁶ 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)].

³⁷ 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)].

³⁸ 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.

³⁹ Human Assisted Reproductive Technology Act 2004, s 18(1)(d).

⁴⁰ Human Assisted Reproductive Technology Act 2004, s 19(1)(a).

⁴¹ According to most recent available data: Advisory Committee on Assisted Reproductive Technology Annual Report 2019/20 (May 2021) at 8; and Advisory Committee on Assisted Reproductive Technology Annual Report 2018/19 (May 2021) at 7.

• 4.16 As we observe in Chapter 2, the increase in surrogacy applications 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.
• 4.17 In 2020, ECART considered the highest ever number of new surrogacy applications in a single year (37, compared to just 14 in 2005).42 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.
• 4.18 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.43
• 4.19 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.44

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

The graph below shows the outcome in surrogacy applications considered by ECART between 2005 and 2020.45

⁴² These figures are based on the minutes from the meetings of the Ethics Committee on Assisted Reproductive Technology (ECART). At the time of writing, minutes were not available in respect of all meetings held in 2021. In meetings held between February and October 2021, ECART had considered 34 surrogacy applications.

⁴³ Interview with Andrew Murray, Medical Director, Fertility Associates (Kathryn Ryan, Nine to Noon, RNZ, 30 March 2021).

⁴⁴ 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; E21/002; E21/067; and E21/155.

⁴⁵ 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.

ISSUES

• 4.21 In the Issues Paper, we explained that our initial research and consultation suggested broad support for the ECART process, which was generally regarded as a safe, effective and robust process.46
• 4.22 However, we said that many people we had spoken with had identified concerns with the way the ECART process is operating in practice. A key concern is that the process is slow and complex. 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. We pointed to additional delays resulting primarily from a lack of resourcing. ECART only meets six times a year, and there are limited numbers of experienced counsellors and lawyers. We noted that, without additional resourcing for the ECART process, the increasing number of surrogacy applications is likely to result in increased delays for intended parents in the future.
• 4.23 Other concerns with the ECART process in practice were identified, and these are addressed elsewhere in this Report. They include the invasiveness of certain aspects of the process (primarily in relation to Oranga Tamariki’s role under the Adoption Act 1955 in assessing intended parents (see Chapter 5 and Chapter 6), the lack of independent appeal or review of ECART decisions (see Chapter 5) and the costs associated with compiling an application to ECART). While ECART does not recover its own costs, intended parents must pay for counselling, legal advice and medical advice as well as the costs associated with the fertility clinic compiling the application. We consider costs further in Chapter 10.
• 4.24 A further concern is that some surrogacy arrangements lack important safeguards. Traditional surrogacy arrangements do not need to be approved by ECART, which means the requirements for counselling, independent legal advice and medical advice do not apply to a significant proportion of domestic surrogacy arrangements.47 This is despite traditional surrogacy arrangements having the potential to raise complex ethical issues given the surrogate not only gestates the child, but is also the child’s genetic parent. 48 We noted there has been one case reported in the media of a private traditional surrogacy arrangement in which the surrogate changed her mind during pregnancy and wanted to keep the child.49 In addition, some gestational surrogacy arrangements where

⁴⁶ See for example Ruth Walker and Liezl van Zyl “Surrogacy and the law: three perspectives” (2020) 10 NZFLJ 9 at 11; 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; Debra Wilson “Surrogacy in New Zealand” [2016] NZLJ 401 at 40; and 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.

⁴⁷ For example, in the year ended 30 June 2021, 10 of the 22 social worker’s reports prepared for te Kōti Whānau | Family Court in relation to domestic surrogacy arrangements were for traditional surrogacy arrangements: Email from Oranga Tamariki | Ministry for Children to Te Aka Matua o te Ture | Law Commission regarding domestic and international surrogacy data (16 July 2021).

⁴⁸ Fertility Associates has previously observed that “cases where the surrogate’s own eggs are used are amongst the most challenging and risky surrogacy cases”: Fertility Associates 2019 submission to ACART: Advisory Committee on Assisted Reproductive Technology Proposed Donation and Surrogacy Guidelines consultation: Organisation submissions (2019) at 48.

⁴⁹ The result in that case was a shared-care arrangement in relation to the resulting child between the surrogate and the intended parents: Katie Harris “Surrogacy Horror: Kiwi parents are having to share custody with surrogate” NZ Herald (online ed, New Zealand, 24 January 2021).

the surrogate’s partner donates 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.50 While we do not think that these 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. 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:51

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.

• 4.25 In the Issues Paper, we explained that, because the current regulatory framework was put in place at a time when gestational surrogacy was an emerging practice, it was timely to reconsider whether it remains the best form of regulation in Aotearoa New Zealand. We expressed a preliminary view that, despite the issues identified above, the requirement for prior approval of surrogacy arrangements by ECART should remain and should be extended to include all surrogacy arrangements. We outline the results of consultation on these matters below.

RESULTS OF CONSULTATION

Issues

• 4.26 We asked submitters whether they agreed with the issues we had identified with the approval process for surrogacy arrangements and whether there were any other issues we should consider. We received 190 submissions that addressed this question. Of these submissions, 81 per cent either agreed (58 per cent)52 or agreed in part (23 per cent)53 with the issues we had identified.
• 4.27 Personal submitters often mentioned the emotional and financial cost of surrogacy and the length, complexity and invasiveness of the existing approval process. As we discuss below, Oranga Tamariki’s role was highlighted as a key issue. One submitter with

⁵⁰ 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, sch 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”).

⁵¹ 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].

⁵² 111 submissions comprising 93 personal submissions, 14 submissions from organisations (Advisory Committee on Assisted Reproductive Technology, Australian and New Zealand Infertility Counsellors Association, Fertility Associates, Fertility New Zealand, Fertility Plus, Maternity Services Consumer Council, New Zealand College of Midwives, New Zealand Nurses Organisation, Nurse Practitioners New Zealand, Office for Disability Issues, Office of the Children’s Commissioner, Oranga Tamariki | Ministry for Children, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society), comments from the Judges of the Family Court and 3 academic submissions (Adjunct Professor Ken Daniels, Dr Liezl van Zyl and Dr Ruth Walker (submitting jointly) and Australian academics Associate Professor Kate Galloway, Professor Mary Keyes and Sarah Hoff (submitting jointly)).

⁵³ 42 submissions comprising 39 personal submissions, 2 submissions from organisations (Federation of Women’s Health Councils Aotearoa and Ethics Committee on Assisted Reproductive Technology) and 1 academic submission (Associate Professor Rhonda Shaw).

experience of the ECART process as an intended parent described it as one of the most invasive and upsetting processes they have been through. Another explained that “people looking for surrogacy aren’t doing so as a first choice or on a whim. It is often a thought-out decision and the process puts them off.” Another submitter said, “It needs to be made more approachable for people so that more people will be willing to go through this for someone else.” Several submitters told us that they preferred an international surrogacy arrangement or flew their New Zealand-based surrogate overseas for treatment to avoid the ECART process.

• 4.28 ACART recognised that the process of surrogacy is not an easy journey and can be long, expensive and invasive. It noted that there are many issues that affect the length of time it takes to review an application, including the fees that committee members are paid, difficulty in obtaining committee members and the length of time it takes for an application to get to ECART while it is put together via the clinic. ACART recognised the cost and frustration that can be felt if an application is either deferred or declined and the applicants’ only options are to submit new information to ECART or have the decision judicially reviewed. ECART commented that it is understandable that its role is perceived as being invasive. It noted that its role involves looking at the finer details of the dynamic of the relationships between the parties to try to prevent negative outcomes for any of the parties.
• 4.29 Some submitters raised additional issues with the ECART process. These submitters were generally concerned that ECART is too conservative in its decision-making. Examples were given of surrogacy arrangements being declined based on the length of time the intended parents and the surrogate knew each other or the surrogate’s weight or age. Some submitters told us that such decisions resulted in a surrogate travelling overseas for successful IVF treatment. One submitter noted that ECART’s low decline rates may not be truly representative, as fertility clinics won’t send an arrangement to ECART if they know it will be declined. Another submitter commented, “If [ECART] were a little more open with who they approve then this would go towards making the process easier here.”
• 4.30 Of the 15 per cent of submissions that did not agree with the issues we identified,54 most were generally opposed to surrogacy in principle, while a smaller number preferred an approach that did not require any form of regulatory approval. We discuss this view further below. The remaining four per cent of submissions that addressed this question selected “no view”.55

Retaining the ECART process for gestational surrogacy arrangements

• 4.31 We asked submitters whether they agreed with our preliminary view that gestational surrogacy arrangements should continue to require ECART approval. We received 190 submissions that addressed this question. Of these submissions, 78 per cent either

⁵⁴ 29 submissions comprising 27 personal submissions and 2 submissions from organisations (Center for Bioethics and Culture Network and Feminist Legal Clinic).

⁵⁵ 8 personal submissions.

agreed (63 per cent)56 or agreed in part (15 per cent).57 Twenty per cent of submissions did not agree,58 and the remaining two per cent selected “no preference”.59

Submissions supporting the ECART process

• 4.32 Submitters who supported retaining the ECART process often commented that it is a rigorous and robust process that supports and protects the parties involved and any resulting child. One personal submission, from a parent through gestational surrogacy, explained:

I am strongly in favour of ECART. I think the counselling is invaluable, it forces you to have conversations you might not have had on your own. It also makes sure that everyone involved in the surrogacy is on the same page. My surrogate was my best friend, and we assumed we would be on the same page with everything, but nothing beats actually having the conversation with a third party and having a definitive plan for all eventualities.

• 4.33 Organisations that addressed this question were largely in support of the ECART process, including the fertility clinics (Fertility Associates, Fertility Plus and Repromed), Fertility New Zealand, the Maternity Services Consumer Council (MSCC), ACART and ECART. ACART explained that all surrogacies can be ethically complex and that the wellbeing of surrogate-born children depends on the relationship between the surrogate and intended parents proceeding as expected. In addition, surrogacy involves both a woman’s choices about her body and sometimes conflicting interests of the potential child and the intended parents. ACART also noted that surrogates could be subject to coercion or undue influence, particularly if the arrangement occurs within a close family relationship between intended parents and the surrogate. ECART observed that the process “allows for the balancing of all ethical issues and implications inherent in such arrangements with a view to protecting the interests of all parties [including any resulting child] by an independent, multi-disciplinary committee”. It noted that:

ECART sees intending parents who are highly motivated and have often been on long journeys to have a baby. ECART’s role is to preserve the interests and dignity of all parties and consider ethical issues in relation to all parties, including any unborn child, in a way that is consistent with the principles of the HART Act.

• 4.34 The Office of the Children’s Commissioner (OCC) and Te Kāhui Ture o Aotearoa | New Zealand Law Society (NZLS) also supported the ECART process. OCC observed it is a robust and internationally well-respected process and that regulatory oversight is warranted because of the risks of surrogacy to the parties and to any surrogate-born

⁵⁶ 120 submissions comprising 98 personal submissions, 15 submissions from organisations (Advisory Committee on Assisted Reproductive Technology, Australian and New Zealand Infertility Counsellors Association, Ethics Committee on Assisted Reproductive Technology, Fertility Associates, Fertility New Zealand, Fertility Plus, Maternity Services Consumer Council, National Council of Women of New Zealand, New Zealand College of Midwives, Nurse Practitioners New Zealand, Office of the Children’s Commissioner, Oranga Tamariki | Ministry for Children, Repromed, Royal Australian and New Zealand College of Obstetricians and Gynaecologists and Te Kāhui Ture o Aotearoa | New Zealand Law Society), comments from the Judges of the Family Court and 6 academic submissions (Dr Anne Else, Adjunct Professor Ken Daniels, Dr Liezl van Zyl and Dr Ruth Walker (submitting jointly), Professor Mark Henaghan, Associate Professor Rhonda Shaw and Australian academics Associate Professor Kate Galloway, Professor Mary Keyes and Sarah Hoff (submitting jointly)).

⁵⁷ 29 submissions comprising 28 personal submissions and 1 submission from an organisation (Federation of Women’s Health Councils Aotearoa).

⁵⁸ 38 submissions comprising 35 personal submissions and 3 submissions from organisations (Center for Bioethics and Culture Network, Feminist Legal Clinic and New Zealand Nurses Organisation).

⁵⁹ 3 personal submissions.

child. NZLS similarly submitted that “overall, we consider the ECART process is a sound one that is more than capable of balancing difficult issues that can and have arisen”. Professor Mark Henaghan commented that, while there may be some refinement of the ECART process, “it is essential to have this oversight to protect the mana of everyone involved”.

• 4.35 The Judges of the Family Court also considered the ECART process was robust and sound. They supported ECART approval for all surrogacy arrangements, observing that each surrogacy creates a unique child and “the creation of each child demands the same scrutiny to ensure the intended child’s best interests and welfare is upheld”.
• 4.36 Some submitters prefaced their support for the ECART process on the issues identified above being addressed. Many submitters wanted the ECART process to be better resourced and made more efficient, which they considered would reduce the stress and cost for intended parents. A small number of submitters, including the Federation of Women’s Health Councils Aotearoa, supported a simpler, less-intrusive and lighter-touch ECART process given that surrogacy has become a widely accepted process. One personal submitter explained:

I do think there are merits in ECART being involved. However, we need to change the process so that they’re a lot lighter touch in their approach. For example, there should be no requirement for ECART to meet to approve these applications. They should be required to formulate a framework that the IVF clinics can meet and then delegate a clerical task to check that they meet these requirements. Only in special or marginal cases should the ECART panels consideration be required.

Submissions opposing the ECART process

• 4.37 Submitters who opposed the ECART process broadly fell into two groups. Some were opposed to surrogacy in principle. Others opposed the requirement for prior approval of surrogacy arrangements. This latter group included some people who had experience of the ECART process or were parents through international surrogacy arrangements.60 These submitters pointed to the fact that people conceiving naturally or using other forms of assisted reproductive technology are not subject to the same government oversight and assessment. Some saw the process as unnecessary, demeaning, unfair, discriminatory and based on flawed assumptions. Several submitters argued that surrogacy arrangements should instead be governed by agreements, pointing to the approach in other jurisdictions such as in some states in the United States. As one personal submitter explained:

I don’t understand how the state feels it can decide who can reproduce, and give permission or not. This should be a contractual right however to safeguard the rights of the child & wellbeing of the child.

• 4.38 Another submitter, who is a parent to a child born through gestational surrogacy with the assistance of a Canadian fertility clinic, explained:

Looking at ECART from our perspective, it feels somewhat unnecessary. We were able to create and transfer an embryo through the support of counsellors and the fertility clinic, without the additional oversight of another costly, scrutinising body. To me this process

⁶⁰ Of the 29 personal submissions that addressed this question and disclosed a personal experience with surrogacy, 9 disagreed with the ECART process and 20 agreed with it.

strengthens the case to seek arrangements overseas. I would prefer to avoid New Zealand if possible for any subsequent children, largely in part because of this component.

• 4.39 One personal submitter told us that she had been through the ECART process as a potential surrogate, but the application was declined due to her age and weight. She submitted:

This is altruistic and I am doing this out of the goodness of my heart. Who gives them the right to make the choice of whether I can help someone or not? If there was a serious medical risk then the doctors would’ve declined it then and it wouldn’t have gone any further. All this has done is cause heartache, financial difficulty, mental anguish and what it has achieved is that we are now looking at going overseas to do this.

Extending the ECART process to traditional surrogacy arrangements

• 4.40 We asked submitters whether they agreed with our preliminary view that parties to a traditional surrogacy arrangement should be able access the same ECART process as parties to a gestational surrogacy arrangement. We received 188 submissions that addressed this question. Of these submissions, 82 per cent either agreed (73 per cent)61 or agreed in part (9 per cent).62 Thirteen per cent of submissions did not agree,63 and five per cent selected “no preference”.64

Submissions supporting extending the ECART process to traditional surrogacy

• 4.41 Submitters who supported extending the ECART process to traditional surrogacy arrangements often mentioned the need to treat all surrogacy arrangements equally and pointed to the benefits of the ECART process, including counselling and legal advice, which safeguard the wellbeing of the parties and the resulting child. ACART submitted that the robust process helps to ensure it is a secure arrangement, providing confidence to all parties. ECART similarly submitted that the ECART process allows for the balancing of all ethical issues and implications inherent in such arrangements.
• 4.42 Some submitters made the point that ECART approval could not, or should not, be a mandatory requirement for traditional surrogacy. A counsellor with experience of the ECART process explained that there is a cost, both financially and in terms of loss of autonomy, in relation to the ECART process and that not all people will want to comply with the process. Several submitters, including NZLS, Oranga Tamariki and OCC, supported incentivising participation in the ECART process by those involved in a

⁶¹ 138 submissions comprising 116 personal submissions, 17 submissions from organisations (Advisory Committee on Assisted Reproductive Technology, Australian and New Zealand Infertility Counsellors Association, Ethics Committee on Assisted Reproductive Technology, Fertility Associates, Fertility New Zealand, Fertility Plus, Maternity Services Consumer Council, National Council of Women of New Zealand, New Zealand College of Midwives, New Zealand Council of Trade Unions, New Zealand Nurses Organisation, Nurse Practitioners New Zealand, Office of the Children’s Commissioner, Oranga Tamariki | Ministry for Children, Repromed, Royal Australian and New Zealand College of Obstetricians and Gynaecologists and Te Kāhui Ture o Aotearoa | New Zealand Law Society), comments from the Judges of the Family Court, and 4 academic submissions (Dr Anne Else, Adjunct Professor Ken Daniels, Dr Liezl van Zyl and Dr Ruth Walker (submitting jointly) and Australian academics Associate Professor Kate Galloway, Professor Mary Keyes and Sarah Hoff (submitting jointly)).

⁶² 17 submissions comprising 16 personal submissions and 1 academic submission (Associate Professor Rhonda Shaw).

⁶³ 25 submissions comprising 23 personal submissions and 2 submissions from organisations (Center for Bioethics and Culture Network and Feminist Legal Clinic).

⁶⁴ 8 submissions comprising 7 personal submissions and 1 submission from an organisation (Federation of Women’s Health Councils Aotearoa).

traditional surrogacy arrangement through providing a fast-tracked process to transfer parentage after the birth. Repromed noted that ECART can already give non-binding ethical advice in relation to a traditional surrogacy arrangement but the numbers of applications made for such advice are low. It considered there is potential for greater numbers of traditional surrogacy arrangements to go through the ECART process if the Commission’s proposed changes to legal parenthood are adopted.

• 4.43 Several personal submitters who agreed with extending the ECART process to traditional surrogacy arrangements had personal experience as an intended parent or surrogate in a traditional surrogacy arrangement. Some noted that they had sought out their own counselling arrangements to replicate the ECART process, a trend also reported by Oranga Tamariki in its submission. One personal submitter who was expecting a child through traditional surrogacy explained:

We took the initiative to seek counselling as the intended parents and a further joint session with our surrogate and found this to be of huge value, and enabled the process to be smooth and all parties on the same page the whole way. We tried to mimic the ECART process so as to not run into any topics or issues that caused friction in our relationship with our surrogate.

• 4.44 Some personal submitters, however, expressed frustration about not being able to get any assistance from fertility clinics without going through ECART. One submitter said:

There needs to be a middle ground between REQUIRING ECART approval and REFUSAL to even do a blood test. This is why people are forced to do it under the radar with no support. As a twice-over traditional surrogate, we were unable to use fertility services for [intra uterine insemination] or even blood tests without ethical committee approval. This meant we had to go “off-grid” and do home inseminations ourselves, estimating ovulation and when to [inseminate].

• 4.45 Several submitters, including Fertility Associates, ANZICA and MSCC, noted the impact this proposal would have on ECART’s workload and supported greater resourcing to enable ECART to cope with the potential increase in applications. ANZICA submitted that “[i]n order to avoid further increased wait times for intended parents, the additional resourcing required under this option needs to be included in its implementation”.

Submissions opposing extending the ECART process to traditional surrogacy arrangements

• 4.46 Of the 13 per cent of submissions that did not agree that traditional surrogacy arrangements should be able to access the ECART process, some were generally opposed to surrogacy in principle while others preferred a regulatory approach that did not require any form of ECART approval. One submitter who had been an intended parent through traditional surrogacy submitted:

Traditional surrogacy needs support not hold ups from rules. ECART as it stands needs to be more focussed on the creating of families for the couples who don’t have the ability to create their own family and less about making adults prove they are worthy. Traditional surrogacy should have the ability to access any help they require, however the help and support should be from another group or replacement to ECART. ECART’s purpose as they put it is to take appropriate measures for the protection and promotion of the health, safety, dignity, and rights of all individuals ... yet they are controlling the rights and making decisions of individuals. The SLOW and inefficient process of ECART completely impinges people’s ability to move forward as they have already spent years trying to create a family. As Intended Parents we often didn’t know how much energy we had left to keep fighting for a family.

Options for extending the ECART process to traditional surrogacy arrangements

• 4.47 In the Issues Paper, we identified two options for extending the ECART process to traditional surrogacy arrangements:

(a) Option One: Require all clinic-assisted surrogacy arrangements to obtain ECART approval.

(b) Option Two: Enable people to apply directly to ECART without going through a fertility clinic.

• 4.48 We received 180 submissions that addressed this question. Views of submitters were mixed, with 28 per cent preferring Option One,65 34 per cent preferring Option Two66 and 22 per cent preferring another option.67 The remaining 16 per cent did not express a preference.68
• 4.49 Submitters who favoured Option One pointed to the fact that there is currently a route for traditional surrogacy arrangements to seek non-binding ethical advice and that a clinic-assisted process would promote consistency. Some submitters who favoured Option One focused on what they saw as the disadvantages of Option Two. ACART noted that direct applications to ECART may be of low quality or fail to have all the required reports. Furthermore, ACART noted that patients will need to use clinic counsellors anyway because they are the only ones that qualify under the ACART Guidelines. ECART noted that Option Two would increase the burden on its Secretariat and ECART in trying to manage inconsistency in applications that this approach would create, a point also made by Fertility Associates, Repromed and ANZICA. Fertility Associates explained:

While a direct approach to ECART sounds appealing and easier, it may not be so. Clinics would no longer have the ability, or responsibility, to ensure all aspects were covered for a smooth journey through the ECART process. A surrogacy application is complex with interlocking requirements. A few years ago, Fertility Associates created the role of ECART coordinator to organise all that needs to be done for an ECART application. DIY could be daunting and time consuming for patients, and the ECART secretariat could well end up playing the role that the clinic coordinator does now.

• 4.50 NZLS did not support Option Two for similar reasons, observing that:

Our concerns relate primarily to timing and that there is a false economy in the expected costs saving. If people can apply directly to ECART there is unlikely be a cost saving or time saving and, as the Commission has identified, it will significantly increase ECART’s workload.

⁶⁵ 51 submissions comprising 44 personal submissions and 7 submissions from organisations (Advisory Committee on Assisted Reproductive Technology, Australian and New Zealand Infertility Counsellors Association, Ethics Committee on Assisted Reproductive Technology, Fertility Associates, New Zealand Council of Trade Unions, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society).

⁶⁶ 61 submissions comprising 55 personal submissions, 5 submissions from organisations (Fertility Plus, Oranga Tamariki | Ministry for Children, Office of the Children’s Commissioner, New Zealand College of Midwives and New Zealand Nurses Organisation) and 1 academic submission (Australian academics Associate Professor Kate Galloway, Professor Mary Keyes and Sarah Hoff (submitting jointly)).

⁶⁷ 40 submissions comprising 30 personal submissions, 6 submissions from organisations (Center for Bioethics and Culture Network, Nurse Practitioners New Zealand, Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Maternity Services Consumer Council, Fertility New Zealand and National Council of Women of New Zealand), comments from the Judges of the Family Court and 3 academic submissions (Dr Anne Else, Adjunct Professor Ken Daniels, and Dr Liezl van Zyl and Dr Ruth Walker (submitting jointly)).

⁶⁸ 28 submissions comprising 25 personal submissions, 2 submissions from organisations (Federation of Women’s Health Councils Aotearoa and Feminist Legal Clinic) and 1 academic submission (Associate Professor Rhonda Shaw).

We also expect that in terms of administration ECART may need to introduce a filing fee to cover the increased administration costs, which will again increase intended parents’ costs and defeat the purpose of a direct application. We also expect that it will transfer the costs to another agency or entity which is likely to take the place of a fertility clinic. We are concerned that it could result in an agent filling the void with a less ethical framework than is currently available through fertility clinics. We acknowledge the risk of “patch protection” by clinics, but in our experience their professionalism and ethics counters against this. We believe people would struggle to navigate the process on their own given the specialist nature of the information needed. This includes the counselling, which is specialist counselling and an important part of the process, as well as the targeted and specialist legal advice. We also note that delays are already experienced in the current system and changes should expedite, not delay, an already slow system.

• 4.51 In contrast, submissions in favour of Option Two considered that this would be more accessible to people considering a traditional surrogacy arrangement, especially as traditional surrogacies are seldom clinic-assisted. Some also thought this could present a much-needed cost saving for the intended parents by not having to pay the clinic to compile the application on their behalf and would give people the freedom to pursue a private surrogacy arrangement without clinic involvement but with the same safeguards in place. One submitter who has a child through gestational surrogacy explained:

In our experience I did a lot of the administration and organisation for our ECART application even though we had paid $3000.00 to the fertility clinic to co-ordinate the process for our egg donor and surrogate and their partners. I think a more straightforward direct approval process should be created so that intending parents can collate the information required from all parties involved and then be able to submit the application directly to ECART.

• 4.52 Fertility Plus preferred Option Two on the basis that Option One forces people to pay the additional costs to have treatment at a clinic subsequent to ECART approval that they otherwise would have accessed independently. Several submitters, including Fertility Plus, the New Zealand College of Midwives and MSCC, acknowledged that Option Two would have implications for ECART’s workload and submitted that this would need to be supported with increased resourcing.
• 4.53 Of the 22 per cent of submissions that preferred another option, the most common response was a preference for enabling both Options One and Two. These submitters supported all clinic-based surrogacy arrangements going to ECART but also thought that ECART approval should not be restricted to those who apply through fertility clinics. OCC submitted that “to help a greater number of people, and to meet diverse abilities and cultural interests and rights, it should not be a requirement to go through clinics”.

Increasing ECART’s capacity to consider surrogacy applications

• 4.54 In the Issues Paper, we identified a range of options for improving the ECART process and asked submitters what options they preferred. We explore these options and make recommendations for reform in Chapter 5.
• 4.55 What was clear from consultation, however, was the high degree of support for increasing ECART’s capacity to consider surrogacy applications. Of the 168 submissions that addressed options for improving the ECART process, 80 per cent supported

increasing ECART’s capacity to consider surrogacy applications.69 This made it the most popular option for reform.

• 4.56 While submitters often acknowledged that a thorough and robust approval process does take time, there was a widespread view among submitters that the current process is too slow and inadequately resourced. As one submitter who had been through the ECART process as an intended parent explained:

The rush to submit documents to meet the ECART deadline, the nervous wait time before results are submitted and the knowledge that other families would miss out as spots were limited must be addressed. These pressures put more hurdles in the way for hopeful parents and willing surrogates.

• 4.57 Another submitter with experience of the ECART process as a surrogate similarly commented that:

It can take some time to get an application together and then to be told that meetings are already full adds even more time to a lengthy process. Some people just don’t have time to sit around and wait.

• 4.58 Those operating within the ECART process, including the fertility clinics (Fertility Associates, Fertility Plus and Repromed) and ANZICA, all agreed that ECART’s capacity needed to be increased. Fertility Associates noted there is a growing backlog, and ANZICA explained that the current 12 application limit per meeting is a constraint that causes intended parents increased wait times “when time is of particular essence and can impact treatment outcomes”, a point made by several other submitters. Adjunct Professor Ken Daniels also submitted that the wait time for consideration of applications is inappropriate, and a fertility counsellor noted that ECART is “wildly overloaded”, with a queue of three meetings before a new application can be considered. MSCC was concerned that unnecessary delays because of insufficient capacity within the ECART process could encourage intended parents to engage in international commercial surrogacy and disincentivise women offering to be a surrogate in Aotearoa New Zealand.
• 4.59 Different ways of increasing ECART’s capacity were suggested, including more frequent ECART meetings, establishing sub-committees or alternate committees to hear applications more regularly, increasing fees paid to ECART committee members and increasing ECART’s secretariat support to improve the administration of the process and support the work of ECART. NZLS submitted that alternate committees could reduce the onus on individual members, enable more frequent meetings, mitigate the risk of conflicts, allow the sharing of workload and give greater opportunity for diversity of membership.
• 4.60 ANZICA and Repromed noted other benefits of increased meetings, including ECART being able to respond in a more timely manner to deferred applications and general enquiries or updates from clinic counsellors that they rely on to progress applications. ANZICA and Repromed did note, however, that increasing ECART’s capacity would have consequences for clinic counsellors’ workload and that clinic counsellors are already

⁶⁹ 134 submissions comprising 117 personal submissions, 12 submissions from organisations (Advisory Committee on Assisted Reproductive Technology, Australian and New Zealand Infertility Counsellors Association, Fertility Associates, Fertility New Zealand, Fertility Plus, Maternity Services Consumer Council, National Council of Women of New Zealand, New Zealand College of Midwives, Office of the Children’s Commissioner, Oranga Tamariki | Ministry for Children, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society) and 5 academic submissions (Dr Anne Else, Adjunct Professor Ken Daniels, Dr Liezl van Zyl and Dr Ruth Walker (submitting jointly), Associate Professor Rhonda Shaw and Australian academics Associate Professor Kate Galloway, Professor Mary Keyes and Sarah Hoff (submitting jointly)).

working at capacity in “this ever growing and evolving field”. They submitted that there needs to be adequate resourcing provided to both ECART and fertility clinics to enable this increased workload to be met.

• 4.61 ECART observed that a number of issues contribute to the complexity and length of the application process and that there is limited resourcing within the entire process, including in the lead-up to an application being submitted to ECART. It also noted that the numbers of applications for surrogacy have increased, due in part to new Guidelines being issued by ACART70 and more New Zealanders seeking treatment in Aotearoa New Zealand in the light of the Covid-19 pandemic. ECART noted its terms of reference allow it to meet every two months or more frequently if required and that, in recent years, ECART has increased the number of meetings it holds in a year. ECART also noted that, while it reviews 12 applications per meeting as a matter of course, it does accept and consider more applications when there is a need to do so.

CONCLUSIONS

• 4.62 We conclude that the ECART approval process is appropriate for surrogacy arrangements for the following reasons:

(a) First, prior approval is a proactive safeguard that protects the rights and interests of the surrogate, the intended parents and any resulting child. 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. The effectiveness of the ECART process is evident in practice. Many submitters and the Judges of the Family Court cited the robustness of the current process.

(b) Second, as noted above, our review identified broad support from submitters for the ECART approval process remaining in place. This is consistent with the results of the Surrogacy Survey, where 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.71

(c) Third, prior approval is consistent with current international best practice, evident from the publication of the Verona Principles in 2021.72 Prior approval is generally

⁷⁰ The 2020 Guidelines provide for on-donation of embryos and remove the requirement for a genetic link between at least one intended parent and a surrogate-born child: Advisory Committee on Assisted Reproductive Technology ACART Advice and Guidelines for Gamete and Embryo Donation and Surrogacy (June 2021) at 26. The Committee notes that this change means that more people can now take advantage of fertility procedures, which will likely lead to an increase in the number of surrogacy applications considered by the Ethics Committee on Assisted Reproductive Technology, at 27.

⁷¹ 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.

⁷² International Social Service Principles for the protection of the rights of the child born through surrogacy (Verona principles) (Geneva, 2021) at [5.1]. See also UNICEF and Child Identity Protection Key Considerations: Children’s Rights & Surrogacy (Briefing Note, February 2022) at 2. Prior independent approval of a surrogacy arrangement is a requirement in Victoria, Western Australia, Israel, South Africa and Greece.

regarded as working well in most other jurisdictions where it is required73 and has recently been proposed in Ireland74 and adopted in Portugal.75

(d) Fourth, a robust prior approval process reduces the need for a prescriptive post- birth process to establish legal parenthood.76 Prior approval provides confidence in the integrity of the surrogacy arrangement, including that it is in the child’s best interests. In Chapter 6, we recommend streamlining the recognition of the intended parents as the legal parents of a surrogate-born child where ECART approval has been obtained.

(e) Fifth, ECART’s membership allows for the consideration of multiple perspectives. 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 holistic approach to common issues that might arise in relation to assisted reproductive technology.77

• 4.63 We prefer the ECART model of regulation over alternatives explored in the Issues Paper.78 Prior approval of surrogacy arrangements is generally considered a more effective form of regulation than post-birth regulation because it has the potential to prevent problems arising in the first place rather than seeking to remedy any problems after the child has

⁷³ See 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; 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 that 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 Allan The Review of the Western Australian Human Reproductive Technology Act 1991 and the Surrogacy Act 2008 (Report: Part 1) (January 2019) at 81–82; and Sonia Allan The Review of the Western Australian Human Reproductive Technology Act 1991 and the Surrogacy Act 2008 (Report: Part 2) (January 2019) at 66.

⁷⁴ An Bille Sláinte (Atáirgeadh Daonna Cuidithe) | Health (Assisted Human Reproduction) Bill 2022 (29) (Ireland), cl 51. See also 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.

⁷⁵ In 2021, the Portuguese Parliament adopted new legislation that introduces a requirement for prior approval of surrogacy arrangements following an earlier decision by the Portuguese Constitutional Court that the legislation was unconstitutional for reasons we discuss in Chapter 6. See: Rohit Ranjan “Portugal: Parliament approves new law authorising surrogacy in country” (republicworld.com, 27 November 2021) and IANS “Portuguese parliament approves surrogacy law” (fresherslive.com, 27 November 2021). Prior approval was also 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 263–264.

⁷⁶ 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].

⁷⁷ 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.

⁷⁸ Te Aka Matua o te Ture | Law Commission Review of Surrogacy | Te Kōpū Whāngai: He Arotake (NZLC IP47, 2021) at [5.50(d)].

been born.79 We also prefer the ECART model over a co-regulation model under which fertility clinics are responsible for ensuring eligibility and screening requirements are complied with and deciding whether to provide fertility services in a surrogacy arrangement.80 A co-regulation model would impose an approval role on fertility clinics, which might impede their ability to maintain a supportive therapeutic relationship with their patients.81 We also note that concerns have been raised in Australia that a co- regulatory approach raises the risk of actual or perceived conflicts of interest82 and that fertility clinics can come under considerable pressure to operate outside any guidelines.83 Neither of these alternative models received strong support in consultation.

• 4.64 We acknowledge the strong views of a minority of submitters that surrogacy arrangements should not have to be subject to ECART approval on the basis that it is an undue state intrusion into individuals’ private lives. We also acknowledge the concern that this discriminates against people who are unable to have a child without recourse to surrogacy. However, surrogacy raises complex issues because it is concerned with the creation of a child and because it involves multiple parties in that process. This calls for regulation to ensure that there are adequate safeguards against the risks to the parties and any resulting surrogate-born child. This includes risks to health, risks that people may not make informed decisions about entering a surrogacy arrangement, risks of relationship breakdown and the long-term consequences this would have on the child, the parties and their families. Ultimately, we consider that the ECART approval process is reasonable and justified for these reasons. We believe, however, that our recommendations in the subsequent chapters, particularly in relation to redefining Oranga Tamariki’s role in the approval process and legal parenthood, help to address the concerns expressed in consultation and clarify that the focus of the ECART process is on safeguarding the rights of the child and the parties and minimising the risk of problems occurring as a result of the surrogacy arrangement.

⁷⁹ 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.

⁸⁰ 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 Allan 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 Allan 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 would be licensed and registered by an independent regulatory body with responsibility for ensuring that legal and ethical standards are met.

⁸¹ Similar concerns have been observed in Victoria, Australia, when counsellors had 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.

⁸² 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].

⁸³ See for example: Legislative Council Standing Committee on Law and Justice Legislation on altruistic surrogacy in NSW

(Report 38, 2009) at [4.47] and [4.62]–[4.67].

RECOMMENDATION

ECART approval for all clinic-assisted surrogacy arrangements

• 4.65 We recommend that all clinic-assisted surrogacy arrangements should be required to obtain ECART approval. This would confirm that all gestational surrogacy arrangements and those traditional surrogacy arrangements that involve a clinic require ECART approval. This recommendation could be given effect by amending Part 2 of the HART Order to clarify that an assisted reproductive procedure performed in a surrogacy arrangement is not an established procedure.
• 4.66 We have not preferred a model where prior approval is only required in some cases but not for “straightforward” surrogacy arrangements. Our view is that all surrogacy arrangements can be ethically complex, and each surrogacy arrangement will present its own risks. In relation to traditional surrogacy, as noted above, a significant proportion of domestic surrogacy arrangements are traditional surrogacy arrangements,84 a trend that is likely to continue in future as people who are unable to contribute their own ova (such as single men and male couples) increasingly use surrogacy to build their family. We consider that people who enter traditional surrogacy arrangements should be able to access the benefits of the ECART process on the same basis as parties to gestational surrogacy arrangements, regardless of the surrogate’s genetic connection to the surrogate-born child or any other matter.
• 4.67 This recommendation is consistent with advice given by ACART to the Minister of Health recommending that the HART Order be amended to require all clinic-assisted surrogacies to be considered by ECART.85 It is also consistent with the recommendations made in the Australian state of Victoria in 2019 to extend the requirement for prior approval in that jurisdiction to include traditional surrogacy arrangements.86 The Law Commission of England and Wales and the Scottish Law Commission have similarly proposed including traditional surrogacy within their proposed regulatory framework, explaining that “excluding traditional arrangements from the new pathway would exclude a sizeable proportion of domestic surrogacy arrangements” and “that exclusion would represent a

⁸⁴ For the year ended 30 June 2021, 10 of the 22 social worker’s reports prepared for te Kōti Whānau | Family Court for surrogacy arrangements were for traditional surrogacy arrangements: Email from Oranga Tamariki | Ministry for Children to Te Aka Matua o te Ture | Law Commission regarding domestic and international surrogacy data (16 July 2021).

⁸⁵ Advisory Committee on Assisted Reproductive Technology ACART Advice and Guidelines for Gamete and Embryo Donation and Surrogacy (June 2021) at Recommendation 4A.

⁸⁶ 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), Recommendation 64.

missed opportunity to improve the conduct of such arrangements for the benefit of all concerned”.87

RECOMMENDATION

Encouraging parties in traditional surrogacy arrangements to participate in the approval process

• 4.68 We recommend that the Government consider ways to encourage parties to traditional surrogacy arrangements to participate in the approval process. In principle, we see merit in enabling parties to a traditional surrogacy arrangement to apply to ECART without involving a fertility clinic. While we acknowledge the views of some submitters, including NZLS, that this may not lead to cost savings in practice, this could make the ECART process more accessible, thereby extending the protective framework to more people.88
• 4.69 We recognise, however, that this would be a significant departure from the way the current regulatory system operates. Currently, applications are made on behalf of parties by the fertility clinic and approvals are on the basis that a nominated person is responsible for conducting the procedure in accordance with the relevant requirements. A workable process would need to be put in place to ensure that parties applying directly to ECART have adequate information and support. Changes may also be needed to the ACART Guidelines to facilitate ECART’s consideration of applications concerning surrogacy arrangements that are not assisted by a fertility clinic.89 We also acknowledge the concern that the only ANZICA qualified counsellors operating in Aotearoa New Zealand are employed by fertility clinics. However, increased demand for this service could be expected to incentivise independent counsellors to meet demand and facilitate applications. Several submitters who have engaged in traditional surrogacy outside the ECART process told us that they were able to access counselling.

⁸⁷ 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 [9.21]. We note, in contrast, the proposed regulatory regime in Ireland would apply only to gestational surrogacy arrangements: An Bille Sláinte (Atáirgeadh Daonna Cuidithe) | Health (Assisted Human Reproduction) Bill 2022 (29) (Ireland), cls 2 (definition of “surrogacy”) and 51. This is despite a number of arguments identified against this approach in the pre-legislative scrutiny stage of the Bill: Joint Committee on Health Tuarascáil ar an nGrinnscrúdú Réamhreachtach ar Scéim Ghinearálta an Bhille um Atáirgeadh Daonna Cuidithe | Report on Pre-Legislative Scrutiny of the General Scheme of the Assisted Human Reproduction Bill (Houses of the Oireachtas, Dublin, July 2019) at 20 and Recommendation 7.

⁸⁸ We note that, in Victoria, the intended parents and the surrogate apply directly to the Patient Review Panel for prior approval of a surrogacy arrangement: Assisted Reproductive Treatment Act 2008 (Vic), s 40(1).

⁸⁹ For example, one requirement is that counselling has been received by each party in accordance with the current Fertility Services Standard: 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(1)]. Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 is the current fertility services standard, and it requires that fertility clinics ensure people participating in surrogacy receive counselling from a person who is eligible to be an Australian and New Zealand Infertility Counsellors Association approved counsellor, at [1.10.5].

• 4.70 Expanding ECART’s role to consider applications made directly by parties to a traditional surrogacy arrangement could also 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. 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).
• 4.71 Given these operational matters, we think that the costs and benefits of enabling parties to a traditional surrogacy arrangement to apply directly to ECART need to be considered further as one possible way of encouraging greater participation in the ECART approval process. We do not think that a desire to preserve current practices and concerns about resource constraints are adequate reasons to exclude traditional surrogacy arrangements from the ECART process. However, it may be that R2 above, which would enable parties to a traditional surrogacy arrangement to apply for ECART approval through a clinic and thereby utilise our recommended administrative pathway to legal parenthood (see Chapter 6), is sufficient to encourage participation in the ECART process. Our recommendation in Chapter 10 to produce comprehensive and clear information on surrogacy law and practice would also highlight the advantages of utilising the ECART process.

RECOMMENDATION

Reviewing the resourcing and operation of the ECART process

• 4.72 Our recommendations to extend ECART’s role to all clinic-assisted surrogacy arrangements and to incentivise the use of the ECART process for traditional surrogacy arrangements by providing a streamlined pathway for legal parenthood will add to ECART’s already growing workload and will likely present significant resourcing implications.
• 4.73 We therefore recommend that the Government review the resourcing and operation of ECART to ensure that surrogacy applications can be considered in a timely manner, consistent with ECART’s statutory duty to operate expeditiously, having regard to the effect that undue delay may have on the reproductive capacity of individuals.90 Increasing ECART’s capacity to consider surrogacy applications received broad support in consultation and was the most favoured reform option. While many submitters acknowledged that a thorough and robust approval process does take time, there was a widespread view among submitters that the current process is too slow and inadequately resourced.

⁹⁰ Human Assisted Reproductive Technology Act 2004, s 29(b).

• 4.74 We acknowledge ECART’s comment that it does consider more than 12 applications every two months when there is a need. However, given the way the current process operates, fertility clinics will work to meet the application deadlines for the next meeting with the knowledge that only a limited number of applications can be considered at the meeting. In practice, this means that the fertility clinics have a backlog of surrogacy applications, which can delay the progress of surrogacy applications. If these limitations are not addressed, there is a risk that more New Zealanders will prefer to enter surrogacy arrangements overseas rather than participate in the ECART process and the protections that process provides.
• 4.75 The Government review should consider the options identified in consultation, including establishing subcommittees to consider surrogacy arrangements, ECART meeting monthly instead of two-monthly and increasing secretariat support.

CHAPTER 5

Improving the approval process

INTRODUCTION

• 5.1 In Chapter 4, we examine the case for retaining and extending the requirement for prior approval of surrogacy arrangements by the Ethics Committee on Assisted Reproductive Technology (ECART). We conclude that the existing approval process remains appropriate as it provides a safe, effective and robust process that safeguards the rights and interests of surrogates, intended parents and any resulting child.
• 5.2 However, we also identify concerns with the way the approval process is operating in practice. This chapter examines discrete aspects of the approval process and makes recommendations to improve its operation.
• 5.3 Some of the issues we identify in this chapter relate to the general operation of the Human Assisted Reproductive Technology Act 2004 (HART Act) and have broader implications beyond surrogacy arrangements. These issues may indicate a need for a wider review of the HART Act, which has not been substantively reviewed in the 18 years since it was enacted.1 A review of the HART Act could consider wider questions, including whether the purpose and principles of the HART Act remain appropriate in contemporary Aotearoa New Zealand2 and whether the existing committee-based regulatory framework remains fit for purpose or if this should be replaced with an assisted reproductive treatment authority similar to the authorities established in the Australian state of Victoria and the United Kingdom and proposed in Ireland.3

¹ A case for reviewing the Human Assisted Reproductive Technology Act 2004 (HART Act) is set out in Michael Legge and Ruth Fitzgerald “Does the Human Assisted Reproductive Technology Act 2004 need a review?” (2021) 17 Policy Quarterly 79.

² In the Issues Paper, we noted the reference in s 4(a) of the HART Act to the health and wellbeing of children as “an important consideration” no longer aligns with the international consensus that confirms the paramountcy of the child’s best interests: Te Aka Matua o te Ture | Law Commission Review of Surrogacy | Te Kōpū Whāngai: He Arotake (NZLC IP47, 2021) at [3.9]. Any review of the HART Act should also consider whether the principle in s 4(f), “the needs, values, and beliefs of Māori should be considered and treated with respect” adequately recognises tikanga Māori and gives effect to the Crown’s obligations under te Tiriti o Waitangi. See discussion in Chapter 3 of this Report.

³ In Victoria, see the Victorian Assisted Reproductive Treatment Authority: <www.varta.org.au>; in the United Kingdom, see the Human Fertilisation and Embryology Authority: <www.hfea.gov.uk>; and in Ireland, see the proposals for An tÚdarás Rialála um Atáirgeadh Daonna Cuidithe | Assisted Human Reproduction Regulatory Authority in An Bille Sláinte (Atáirgeadh Daonna Cuidithe) | Health (Assisted Human Reproduction) Bill 2022 (29) (Ireland), pt 8.

• 5.4 In any event, we encourage further consideration of how some of our recommendations below, such as the need for an independent review process, could apply to all applications that require ECART approval, not just surrogacy applications.

ORANGA TAMARIKI’S ROLE IN THE APPROVAL PROCESS

Current law

• 5.5 As we explain in Chapter 6, intended parents must adopt a child born through surrogacy to become that child’s legal parents. As part of the adoption process, a social worker from Oranga Tamariki | Ministry for Children must prepare a report for te Kōti Whānau | 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.4
• 5.6 As a consequence of this requirement, ECART requires in-principle approval from Oranga Tamariki to the intended parents adopting any child resulting from the surrogacy arrangement, before ECART approves the surrogacy arrangement.5 This helps to safeguard the surrogate-born child’s wellbeing by ensuring there are no impediments to the intended parents adopting the child.
• 5.7 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. If a surrogacy arrangement is approved by ECART and a viable pregnancy is established (around the 12-week mark), Oranga Tamariki will then undertake a more comprehensive adoptive applicant assessment, which involves assessment interviews with the intended parents. Once the child is born, the social worker will again visit the intended parents’ home so that they can observe the child in the intended parents’ care. The social worker will then prepare the report for the Court, relying on the information from the adoptive applicant assessment and the subsequent home visit.

Issues

• 5.8 In the Issues Paper, we said that Oranga Tamariki’s role in assessing the parental suitability of intended parents in surrogacy arrangements is often identified as a source of concern.6 Some consider the assessment process is overly invasive and inappropriate in the context

⁴ Adoption Act 1955, ss 10 and 11.

⁵ If this approval has not been obtained, ECART may defer the application or make its approval conditional on Oranga Tamariki | Ministry for Children’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.

⁶ See for example Ruth Walker and Liezl van Zyl “Fear and Uncertainty: The Surrogacy Triad’s Experience of Social Workers’ Role Ambiguity” (2021) 51 British Journal of Social Work 2982 at 2989–2991.

of surrogacy, especially in situations where one or both intended parents are the child’s genetic parents.

• 5.9 In Chapter 6, we recommend a new legal framework for determining legal parenthood in surrogacy arrangements. It is therefore necessary to reconsider the appropriate role of the state in assessing intended parents’ suitability in the surrogacy context.

Results of consultation

• 5.10 In the Issues Paper, we identified a list of options to improve the ECART process that addressed the topics explored in this chapter. We asked submitters which options they preferred. Of the 168 submissions that addressed this question, 58 per cent supported a reconsideration of the parental suitability assessment in surrogacy arrangements.7
• 5.11 Many submitters who supported reconsideration of the parental suitability assessment felt strongly that the current requirements were unnecessarily invasive. These submitters often noted the lack of any similar requirement for other people conceiving with or without fertility treatment and the need to treat intended parents fairly and with respect. Some submitters drew on their own experience of being an intended parent. One personal submission from a parent through gestational surrogacy explained:

People who pursue surrogacy have thought long and hard about their wishes to parent a child, including their self-assessed ability and readiness, and that already speaks volumes to their parental “fitness.” In some sense it feels discriminatory to be unable to “have kids on a whim” ourselves.

• 5.12 Some also considered the current requirement to be a poor use of Oranga Tamariki’s resources. A parent through gestational surrogacy explained:

To be assessed whether we would be fit parents and have a social worker visit our home after 5 years of trying, 50K + of fees was traumatic, insulting and unfair. Not one person we have ever met from all walks of life, whether fit or not — are assessed before being allowed to become parents, yet potential parents willing to pay extraordinary amounts, go through invasive treatments and risk grief and loss in the process are put through this. Oranga Tamariki should be spending their time with children of families who are not fit, not assessing those who would go to the ends of the earth to welcome a child into their home.

• 5.13 Another personal submission from a counsellor emphasised the personal cost on intended parents who have often struggled with fertility and must then tell their story not only to ECART but also to Oranga Tamariki. Several submitters were concerned that ongoing Oranga Tamariki involvement in the ECART process might disincentivise people considering a traditional surrogacy arrangement from engaging in the ECART process. The Office for Disability Issues also noted that assessing an intended parent’s fitness to parent may have an unintended discriminatory impact on disabled people and disabled children born from surrogacy.
• 5.14 Submitters expressed mixed views as to what should replace the existing assessment requirements. Some submitters supported removing the parental suitability assessment entirely from the ECART process. Fertility Plus explained that, while it supports the

⁷ 97 submissions comprising 82 personal submissions, 10 submissions from organisations (Ethics Committee on Assisted Reproductive Technology, Federation of Women’s Health Councils Aotearoa, Fertility Associates, Fertility New Zealand, Fertility Plus, Maternity Services Consumer Council, New Zealand College of Midwives, New Zealand Nurses Organisation, Oranga Tamariki | Ministry for Children and Te Kāhui Ture o Aotearoa | New Zealand Law Society) and 2 academic submissions (Dr Anne Else and Dr Liezl van Zyl and Dr Ruth Walker (submitting jointly)).

paramountcy of the best interests of the surrogate-born child, the ECART assessment and approval process could adequately include oversight on this matter.

• 5.15 Other submitters supported some form of assessment continuing but considered that this should be less invasive and designed specifically for surrogacy. The Judges of the Family Court suggested that a set of minimum requirements could be set to streamline the process and a standard brief designed for a psychosocial suitability assessment. Some submitters expressly supported criminal background checks. However, the Federation of Women’s Health Councils submitted that any approval should depend on the sentence rather than the fact of a conviction, observing that “[u]sing a history of imprisonment as a criteria for access to surrogacy assumes that ‘having done one’s time’ is a predictor of lack of parenthood responsibilities”. They were concerned that this could discriminate against Māori given they are more likely to be sentenced to prison than Pākehā. A few submitters expressly opposed requiring character references or the disclosure of financial information. Te Kāhui Ture o Aotearoa | New Zealand Law Society (NZLS) submitted that:

... with gestational surrogacies any assessment requirement that involves a social setting or home assessment, financial disclosure, or detailed family histories for birth parents, is not as relevant as the intended parents’ plan for sharing their birth story with their child, their relationship with the surrogate and their plans for, and preparation to, parent a child created through surrogacy rather than their own pregnancy.

• 5.16 ECART also considered that checks such as home visits to ensure the house is child friendly are not appropriate in the context of surrogacy arrangements but nonetheless considered it important that there are adequate mechanisms for ensuring the interests of any future child are safeguarded as much as possible and that this information is made available to ECART as part of any application.
• 5.17 Other suggestions to improve the assessment process included a more streamlined process for gestational surrogacy where the intended parents’ gametes are used, specific training for Oranga Tamariki social workers and reducing the timeframe in which Oranga Tamariki assessments are carried out from 90 days to 30 days. Fertility Plus submitted that, if Oranga Tamariki continue to conduct assessments, it should no longer carry the role of assessing intended parents’ health and life expectancy. Instead, this should be information provided to ECART by an intended parent’s medical specialist.
• 5.18 There were mixed views on who should perform this assessment role. The Judges of the Family Court supported Oranga Tamariki continuing to perform this role because of its expertise. Other submitters supported a different organisation taking on this role. NZLS submitted that other experts with a background in fertility issues, parenting and attachment could be used for this assessment process and are likely to be less confronting for the parties to the planned surrogacy than an Oranga Tamariki social worker. ECART considered that there ought to be consideration of an appropriate agency to undertake an appropriate check in the context of any new framework.
• 5.19 Some submitters supported counsellors having a role in assessing parental suitability rather than Oranga Tamariki, with Fertility Plus noting that clinic counsellors and other clinic staff can respond appropriately to any concerns for the welfare of a resulting child, which is current practice in other areas of fertility treatment. Others, however, did not favour this option. The Australian and New Zealand Infertility Counsellors Association (ANZICA), Fertility Associates, Repromed, the Judges of the Family Court and Dr Anne Else did not think counselling and screening roles were compatible and were concerned about the potential for conflicts of interest. As ANZICA and Repromed explained, “[o]ur

role is to provide supportive and implications counselling and ... acting in a screening role will be detrimental to the provision of this”.

• 5.20 Oranga Tamariki agreed that the parental suitability assessment in surrogacy arrangements should be reconsidered and performed in a reduced and more focused capacity. It submitted that:

In our view, state involvement should be around supporting parents to safely care for their children thus preventing harm to children, rather than policing their ability to have children.

• 5.21 Oranga Tamariki submitted that parental assessments should be focused on identifying any major risks or concerns (such as through New Zealand Police and care and protection checks) rather than an in-depth assessment to determine if intended parents are fit and proper. It submitted that:

Through our role in supporting the regulatory process for gestational surrogacy arrangements, we have observed there is little risk in domestic surrogacy arrangements. Intending parents to date have nearly always been found ‘fit and proper’. When there have been issues raised regarding the parent’s ability to care for a child, these have typically been in relation to life limiting medical issues — these have been uncommon.

RECOMMENDATIONS

Conclusions

• 5.22 We consider that Oranga Tamariki’s role in the regulation of surrogacy arrangements needs to be clarified and redefined to focus on advising ECART on whether it has any serious concerns in relation to the risk of harm to any resulting child. This role should be prescribed in the HART Act, given it will replace Oranga Tamariki’s current role in surrogacy arrangements performed under the Adoption Act 1955. We consider that redefining Oranga Tamariki’s role in this way, along with other recommendations made in this Report, will give paramountcy to the child’s best interests in a way that is reasonable and justified. Specifically, in addition to redefining Oranga Tamariki’s role, we make recommendations in this chapter that seek to strengthen the focus of the ECART process on children’s best interests. This includes improving the focus of counselling on children’s rights to identity and amending the composition of ECART and the Advisory Committee on Assisted Reproductive Technology (ACART) to require at least two members with the ability to articulate the interests of children. In Chapter 7, we also recommend an additional principle in section 4 of the HART Act stating that surrogate-born people should be made aware of their genetic and gestational origins and whakapapa and be able to access information about those origins. This principle will guide the exercise of powers and the performance of functions under the HART Act.

Redefining Oranga Tamariki’s role in surrogacy arrangements

• 5.23 We do not think that the state should assess intended parents’ general suitability to be parents as it does currently under the Adoption Act. However, it is important to retain some form of minimum pre-conception checks to safeguard the wellbeing of any resulting child. Oranga Tamariki’s role in surrogacy regulation should therefore be limited to establishing and applying a process to identify whether there are any serious concerns in relation to the risk of harm to any resulting child.8 Its findings should then be reported to ECART in the surrogacy report. Currently, ECART can only approve an application if it is satisfied that the risks associated with a surrogacy for any resulting child are justified in

⁸ We note, by way of example, a new Bill introduced in Ireland to regulate assisted human reproduction (AHR) treatment imposes an obligation on AHR providers to be satisfied that the intended parents as well as the surrogate and any partner “[do] not present a potential significant risk of harm or neglect to any child that may be born as a result of such treatment”: An Bille Sláinte (Atáirgeadh Daonna Cuidithe) | Health (Assisted Human Reproduction) Bill 2022 (29) (Ireland), cl 16(1) and 16(7). That Bill envisages AHR providers to require each relevant person to complete a “section 16

assessment”, the parameters of which will be prescribed by the Minister in regulations: cl 16(2). The Bill requires the Minister to have regard to three matters when making regulations: cl 16(2)(c). First, that “the paramount consideration is the safety of any child”. Second, that the information sought needs to be “appropriate and proportionate” to satisfying the AHR treatment provider as referred to in cl 16(1). Third, any information sought that may reasonably be regarded as sensitive information is protected from any unnecessary further disclosure.

the proposal.9 The surrogacy report would therefore provide an important source of relevant information to assist ECART to perform its functions.

• 5.24 We acknowledge that other people who become parents with or without assisted reproductive technology do not need to undergo such checks. It is important to emphasise that we do not think that people who engage in surrogacy represent any greater risk than other parents. Rather, the need for some minimum checks stems from the state’s unique role in the regulation of surrogacy arrangements.10 Our view is that the state should continue to actively facilitate surrogacy arrangements, including through the application of a regulatory approval process and the establishment of a separate process for recognising the intended parents as the legal parents of any surrogate-born child. In doing so, the state has obligations under the United Nations Convention on the Rights of the Child to ensure that the best interests of the child are a primary consideration11 and to take all appropriate measures to protect children from future risk and harm.12 In the surrogacy context, we consider that this amounts to a responsibility to identify and exclude arrangements where there is an unjustified risk of harm to any resulting child. This would align with the Verona Principles, which require an established framework for pre- surrogacy arrangements that promotes the rights of surrogate-born children.13
• 5.25 Providing for some basic pre-conception checks that are consistent with international best practice will also futureproof the regulatory system. It will help to ensure that legal parenthood established in Aotearoa New Zealand will be recognised internationally under any future international instrument.14 This will be important for New Zealanders who move overseas.

Introducing a specialist process for surrogacy reports

• 5.26 We recommend consideration be given to a two-step framework for preparing surrogacy reports. Step One would involve basic background checks such as criminal background and child protection checks. In our view, such checks are a reasonable and proportionate

⁹ As required under 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)].

¹⁰ See discussion 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 [11.10]–[11.13] and [13.66]–[13.72]; 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 [18.2.20]–[18.2.22]; 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 [91]–[104]. Sonia Allan The Review of the Western Australian Human Reproductive Technology Act 1991 and the Surrogacy Act 2008 (Report: Part 2) (January 2019) at 106.

¹¹ 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.

¹² 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].

¹³ International Social Service Principles for the protection of the rights of the child born through surrogacy (Verona principles) (Geneva, 2021) at [5.1].

¹⁴ In 2023, the Experts’ Group on Parentage / Surrogacy convened by the Hague Conference on Private International Law will report on the feasibility of a possible future general private international law instrument on legal parentage and a separate protocol on legal parentage established as a result of international surrogacy arrangements.

step to identify any specific concerns for the welfare of the child.15 Such checks are currently undertaken by Oranga Tamariki in relation to intended parents as part of the broader process for obtaining in-principle approval to adoption. Similar requirements are also in place in Aotearoa New Zealand for the appointment of additional guardians16 and for people who work with children.17 Criminal background checks are also endorsed in the Verona Principles18 and form part of pre-conception surrogacy regulation or recommendations in other jurisdictions.19 As the Australian Human Rights Commission has observed:20

A requirement to conduct such checks in all cases is likely to be of significant benefit if it is effective in some cases in identifying people who should not be granted approval (or if such people are discouraged from making an application to be approved as an intended parent).

• 5.27 If those basic background checks do not reveal any concerns, no further investigation or assessment should be necessary and the surrogacy report to ECART should confirm that background checks have not revealed any information that indicates the proposed arrangement poses any serious risk of harm to any resulting child.
• 5.28 We do not think that intended parents should be required to prove their parental suitability through home safety checks, provision of character references or disclosing detailed personal and family histories and financial information unless background checks reveal relevant concerns that should be investigated further. We also agree with Fertility Plus that the intended parents’ health and life expectancy status should not be addressed by Oranga Tamariki but by the independent health reports that are prepared for the

¹⁵ A prior conviction is a recognised risk factor to future offending: Leon Bakker, David Riley and James O’Malley Risk of Reconviction: Statistical Models which predict four types of re-offending (Department of Corrections, 1999). However, it is well established that people who pose a risk to children are rarely convicted of a crime, although they may be known to social services or police. This underscores the need to consider wider interactions with police and child protection services: Lorraine R Beyer, Daryl J Higgins and Leah M Bromfield Understanding Organisational Risk Factors

for Child Maltreatment: A Review of Literature (National Child Protection Clearinghouse, Australian Institute of Family Studies, November 2005) at 77–79.

¹⁶ A spouse or partner of a parent can be appointed as an additional guardian by consent provided the spouse or partner is not, and has never been, involved in proceedings concerning a child under the Care of Children Act, or Part 2 of the Oranga Tamariki Act 1989, is not, and has never been, either a respondent or an associated respondent in proceedings under the Family Violence Act 2018, and has never been convicted of an offence involving harm to a child (including without limitation certain specified offences): Care of Children Act 2004 s 23(2)(b)–(d). The spouse or partner’s criminal

record must be filed with the court along with a statutory declaration by the parents making the appointment confirming that, to the best of their knowledge, the spouse or partner is not ineligible to be appointed for the reasons identified above: ss 23(5)(a) and 24.

¹⁷ Children’s Act 2014, s 31.

¹⁸ International Social Service Principles for the protection of the rights of the child born through surrogacy (Verona principles) (Geneva, 2021) at [5.3(b)] and [5.5(b)].

¹⁹ See for example Surrogacy Act 2019 (SA), s 10(4)(g). Background checks have been proposed 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 [13.69]–[13.72]; Sonia Allan The Review of the Western Australian Human Reproductive Technology Act 1991 and the Surrogacy Act 2008 (Report: Part 2) (January 2019) at 106 (recommending a “welfare check” as part of pre-surrogacy counselling, which should include the ability to obtain further information via requesting a criminal record or child protection order check if needed in individual cases); and in 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].

²⁰ 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 [104].

parties.21 This would also simplify Oranga Tamariki’s role and reduce duplication in the process.

• 5.29 In some cases, background checks may identify a concern that should be investigated further by an Oranga Tamariki social worker. Not all prior convictions or interactions with Police or Oranga Tamariki should trigger further investigation, only those that raise a concern about the risk of future harm to a child. We do not recommend prescribing a list of offences or circumstances that should trigger further investigation but note that the list of specified offences that prevent employment in a role with contact with children22 or the circumstances that disqualify appointment of an additional guardian by consent23 could provide useful indicators. Further investigation should include seeking information from the intended parents. Even serious offending should not automatically exclude a person from having a child through surrogacy if their circumstances have changed materially since the offending. It is important, however, that a framework is in place for situations where past behaviour suggests that there may be a serious risk of harm to any resulting child. If Oranga Tamariki forms a view that the arrangement poses a serious risk of harm to any resulting child, it should report on the nature of that concern to ECART.
• 5.30 We expect that these changes would simplify Oranga Tamariki’s role for the vast majority of applications that will not require further investigation. It would enable the state to meet its international human rights obligations in a minimally invasive manner and should reduce the burden on Oranga Tamariki staff and the time it takes to obtain information. We note that Step One is largely an administrative task that may or may not require the expertise of a social worker. However, for the reasons given below, we consider Oranga Tamariki is the best-placed agency to conduct these checks. We recommend setting a timeframe for the provision of surrogacy reports under Step One of 30 days rather than the current 90 days, as suggested by Repromed and ANZICA. We do not recommend a shorter timeframe for Step Two, acknowledging that these investigations and risk assessments will be case specific. However, any surrogacy report that engages Step Two should still be prepared as soon as practicable and in any event within the existing 90-day timeframe.

Establishing a specialist unit in Oranga Tamariki

• 5.31 We consider that a specialist unit should be established within Oranga Tamariki to undertake the role of preparing surrogacy reports as well as the functions we discuss in Chapter 6 in relation to surrogacy arrangements that do not go through the ECART process or result in a legal parenthood dispute. We acknowledge that this will have resourcing implications for Oranga Tamariki, especially if our recommendations in relation to extending the ECART process to include traditional surrogacy arrangements in Chapter 4 are accepted.

²¹ As required under 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)].

²² Children’s Act 2014, s 28 and sch 2.

²³ Care of Children Act 2004, s 23(2).

• 5.32 We agree with submitters that this role should not be undertaken by counsellors working with the intended parents and surrogates given the potential conflict of interest.24 This is consistent with professional guidelines in the United Kingdom that call for a separation between counselling and welfare of the child assessments.25 We have also considered the option of requiring a fertility clinic to obtain criminal records and provide these to ECART without the need for Oranga Tamariki involvement. We do not support this approach, however, as we do not think it is necessary or appropriate for the clinic or ECART to sight full criminal histories of the parties involved.26 Only if Oranga Tamariki considers the arrangement poses a serious risk of harm to any resulting child should relevant information about that risk be disclosed to ECART.
• 5.33 We also prefer Oranga Tamariki over another independent organisation or professional performing this role given Oranga Tamariki’s statutory responsibility for the care of children and its responsibility for maintaining child protection information systems.27 If another organisation or professional was responsible for preparing surrogacy reports, they would still need to rely on information and records held by Oranga Tamariki, adding to the administration and potentially creating another source of delay.
• 5.34 We have also considered whether the surrogate (and any partner) should also be subject to the same background checks as intended parents. In some jurisdictions, this is also required or recommended to safeguard the best interests of the child,28 sometimes on the basis that the child may remain in the surrogate’s care after birth.29 Ultimately, we do not consider that imposing background checks on the surrogate (and any partner) is

²⁴ This was also the conclusion in 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. See also Marilyn Crawshaw and others “Counselling challenges associated with donor conception and surrogacy treatments — time for debate” (2021) Human Fertility 1 at 5 and Marilyn Crawshaw and Ken Daniels “Revisiting the use of ‘counselling’ as a means of preparing prospective parents to meet the emerging psychosocial needs of families that have used gamete donation” (2019) 8 Families, Relationships and Societies 395 at 403.

²⁵ See discussion in Marilyn Crawshaw and others “Counselling challenges associated with donor conception and surrogacy treatments — time for debate” (2021) Human Fertility 1 at 4.

²⁶ We note our recommendations differ to the approach proposed in a Bill introduced in Ireland, discussed at [5.23], n 8 above. As discussed, that Bill would impose an obligation on the treatment provider to be satisfied that the intended parents, surrogate and any partner do not present a “potential significant risk of harm or neglect to any child”: An Bille Sláinte (Atáirgeadh Daonna Cuidithe) | Health (Assisted Human Reproduction) Bill 2022 (29) (Ireland), cl 16(1). It is unclear what this will involve in practice, although the Minister, when prescribing the requirements for this assessment, must have regard to the need to protect any sensitive information from “unnecessary further disclosure by the AHR treatment provider concerned”: cl 16(2)(c)(iii).

²⁷ Information held on Oranga Tamariki | Ministry for Children’s information systems (CYRAS and TRIM) are currently checked as part of the adoptive applicant assessment. Oranga Tamariki guidance states that any reports of concern or matters relating to youth offending regarding either the applicant, their own history as a child and the applicant’s family need to be considered, and any information on CYRAS or TRIM that details offending should be independently verified, such as through a police check: Oranga Tamariki | Ministry for Children “Assessing infromation from suitability checks” (1 April 2019) <www.orangatamariki.govt.nz>.

²⁸ 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 [13.67] and [13.72]; 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 [18.2.22]; Sonia Allan The Review of the Western Australian Human Reproductive Technology Act 1991 and the Surrogacy Act 2008 (Report: Part 2) (January 2019), Recommendation 22; and International Social Service

Principles for the protection of the rights of the child born through surrogacy (Verona principles) (Geneva, 2021) at [5.4](c).

²⁹ 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].

necessary given the planned intentions of the parties that the intended parents will care for and raise the child as the child’s legal parents. In the rare situation where legal parenthood is disputed, the Family Court would be required to determine legal parentage in accordance with the best interests of the child, as we explore in Chapter 6.

RECORDING SURROGACY ARRANGEMENTS IN WRITING

Current law

• 5.35 Unlike many other comparable jurisdictions, there is no legal requirement in Aotearoa New Zealand to record a surrogacy arrangement in writing prior to conception.30 Rather, the ECART application serves as a record of what the parties have discussed and agreed.

Issues

• 5.36 In the Issues Paper, we noted that there is some evidence that written surrogacy agreements are becoming more common in Aotearoa New Zealand31 even though such agreements are not required and are unenforceable under the HART Act,32 as we discuss in Chapter 6. Requiring surrogacy arrangements to be recorded in writing and signed by the parties could minimise the risk of problems arising during or after the surrogacy arrangement. Recent research that examined surrogacy arrangements in Aotearoa New Zealand found that some parties write a “letter of intent” that records their expectations, which, while unenforceable, “can serve as a source of security for everyone”.33

Results of consultation

• 5.37 We asked submitters which options they preferred to improve the ECART process. Of the 168 submissions that addressed this question, 76 per cent supported a requirement for surrogacy arrangements to be recorded in writing and signed by the parties.34
• 5.38 Submitters who supported this option thought it would help ensure the participants fully understand all the legal and health implications of the arrangement and give informed

³⁰ A pre-conception written surrogacy agreement is a precondition to establishing legal parenthood in most Australian states: Surrogacy Act 2019 (SA), ss 10(3)(d) and 10(5); Surrogacy Act 2012 (Tas), ss 5(5) and 16(2)(e); Surrogacy Act 2010 (Qld), s 22(2)(e)(iv)–(v); Surrogacy Act 2010 (NSW) ss 24(1) and 34; Surrogacy Act 2008 (WA) s 17(b) and (e). See also Surrogacy Bill 2022 (50) (NT), cls 14–15. A pre-conception written surrogacy agreement is also required in Ontario, British Columbia and Saskatchewan: Children’s Law Reform Act RSO 1990 c 12, s 10(2); Family Law Act SBC 2011 c 25, s 29(2)(a); and Children’s Law Act SS 2020 c 2, s 62(2)(a).

³¹ 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. 41 lawyers answered this question, 29 responded yes, 6 responded no and 6 said “nothing as formal as a written agreement”.

³² Human Assisted Reproductive Technology Act 2004, s 14(1).

³³ Hannah Gibson “Kin-making in the Reproductive Penumbra: Surrogacy in Aotearoa New Zealand” (PhD Dissertation, Te Herenga Waka | Victoria University of Wellington, 2021) at 133.

³⁴ 128 submissions comprising 116 personal submissions, 8 submissions from organisations (Fertility Associates, Fertility New Zealand, Fertility Plus, Maternity Services Consumer Council, Nurse Practitioners New Zealand, Office of the Children’s Commissioner, Oranga Tamariki | Ministry for Children and Te Kāhui Ture o Aotearoa | New Zealand Law Society), comments from the Judges of the Family Court and 3 academic submissions (Dr Anne Else, Adjunct Professor Ken Daniels, Dr Liezl van Zyl and Dr Ruth Walker (submitting jointly)).

consent. NZLS and the Judges of the Family Court supported a requirement for written surrogacy agreements to be signed by the parties and certified by a lawyer. The Judges of the Family Court explained that certification provides an additional safeguard to ensure that the consent given at the time to enter the surrogacy agreement is true consent. NZLS explained that, while the agreement is not enforceable, it does set out the intention of the parties, and this may become a form of evidence should a dispute arise requiring proceedings in the Family Court.

• 5.39 NZLS did not think that the creation of a surrogacy agreement would add significantly to the process as the legal and counselling reports already provided to ECART document many of the issues that would be recorded in an agreement. NZLS suggested that checklists of key issues used by counsellors may be useful in compiling a list of considerations for surrogacy agreements. NZLS noted that many jurisdictions require such documents, and it enables a record to be kept in a single document of the parties’ key expectations and understandings. NZLS said that:

Lawyers do report that many clients often express surprise there is no written agreement recording the surrogacy plans and some even draft their own as an adjunct to the ECART process.

• 5.40 NZLS supported including in agreements information around how cultural and identity information will be shared with the child.
• 5.41 Some submitters, including ANZICA, ECART and Repromed, did not support this option. ANZICA and Repromed explained that there is potential for the parties to sign their ECART application as a means of confirming their consent to their agreement. They noted that written agreements seem to be more common in traditional surrogacy arrangements that do not come through ECART and that the need for this could reduce if these arrangements access the ECART process in future. Fertility Plus similarly noted that written agreements would mostly be beneficial and relevant to traditional surrogacy arrangements that are not going through the ECART process and therefore have no written record of their intentions.
• 5.42 ECART explained that parties are usually not encouraged to record surrogacy arrangements in writing as surrogacy agreements are not enforceable by law. ECART noted, however, that the key aspects of surrogacy arrangements are discussed, agreed and recorded in counselling sessions.

RECOMMENDATION

Conclusions

• 5.43 There are clear benefits to requiring a surrogacy arrangement to be recorded in writing and signed by the parties. It would give the parties a record of their intentions in a single document that they can refer to over the course of the arrangement. This could provide greater certainty, minimise the risk of disagreement and assist the parties to resolve any problems in future.35 We think this is important given that, in some cases, a pregnancy may not be achieved for months or years following ECART approval. A record of intentions would also provide clear evidence of the parties’ original intentions in the event of any dispute.
• 5.44 Requiring a written record of the parties’ intentions is consistent with the approach taken in many comparable jurisdictions36 and would therefore futureproof the regulatory system, especially given the ongoing work by the Hague Conference on Private International Law to establish uniform laws on the recognition of legal parenthood and surrogacy.37
• 5.45 In Chapter 8, we recommend that agreements to cover surrogacy costs that are entered into before the surrogate becomes pregnant should be enforceable. A natural consequence of this recommendation will be that parties will be encouraged to record their intentions in writing.
• 5.46 We appreciate the concerns raised by some submitters that requiring a written “surrogacy agreement” may wrongly suggest that such agreements are enforceable. However, we think this risk can be avoided by calling the record of intentions a “surrogacy plan” rather than an “agreement”. Building this requirement into the ECART process also ensures that surrogacy plans are discussed with the parties’ lawyers. The surrogacy plan itself could also include a statement to the effect that it is unenforceable except in relation to the payment of surrogacy costs, which we think would adequately address this concern.
• 5.47 Surrogacy plans would not need to be complex. As well as the parties’ intentions in relation to legal parenthood and parental responsibility, the plan should address the parties’ plans for sharing identity information with the surrogate-born child and payment of surrogacy costs. We suggest that the surrogacy information website we recommend in Chapter 10 include discussion of the matters that should be addressed in a surrogacy plan.

³⁵ 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.

³⁶ See [5.35], n 30 above. Requiring a written record of the surrogacy arrangement is also consistent with proposals made 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 [8.8]; and with the provisions of An Bille Sláinte (Atáirgeadh

Daonna Cuidithe) | Health (Assisted Human Reproduction) Bill 2022 (29) (Ireland) cls 50 and 51.

³⁷ See Permanent Bureau of the Hague Conference on Private International Law “Parentage / Surrogacy”

<www.hcch.net>.

IMPROVING COUNSELLING REQUIREMENTS

Current law

• 5.48 Counselling is a central feature of the ECART process. The ACART Guidelines require all parties to a prospective surrogacy arrangement to have received individual and joint counselling,38 and ECART must be satisfied that counselling will continue to be available to all parties before and after pregnancy is achieved.39 This recognises that surrogacy arrangements can raise significant psychological and social issues for all parties and that these issues need to be addressed alongside medical, legal and cultural factors.40
• 5.49 Counselling must be provided by a person who is eligible to be an ANZICA approved counsellor.41 ANZICA’s role includes providing ethical guidance to its members, including specific guidance on surrogacy counselling.42
• 5.50 Counselling must address a range of matters. As part of the ECART application, the counsellor must report that, in their opinion:

(a) the health and wellbeing of the intended surrogate and any resulting children are adequately safeguarded;43 and

(b) all affected parties have understood:44

(i) each other’s needs and plans for continuing contact and information sharing;

(ii) any specific issues that might affect the health and wellbeing of all affected parties;

(iii) the implications if any resulting child has medical conditions, disabilities or genetic disorders; and

(iv) the possibility that the surrogate may terminate the pregnancy.

Issues

• 5.51 In the Issues Paper, we sought views on whether counselling requirements could be improved. We noted that, while the ACART Guidelines provide comprehensive guidance on counselling requirements, two surrogates we spoke with in our 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.

³⁸ 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)].

³⁹ 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)].

⁴⁰ 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 62.

⁴¹ Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 at [1.10.5].

⁴² See Australian and New Zealand Infertility Counsellors Association Guidelines for Professional Standards of Practice Infertility Counselling (31 August 2018).

⁴³ 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)].

⁴⁴ 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)].

One fertility clinic counsellor we spoke with said that, while they offer further counselling during the surrogacy arrangement, uptake varies.

• 5.52 In some Australian states, additional counselling must take place following the birth of the child.45 Post-birth counselling for the surrogate is seen as a particularly valuable opportunity to provide the surrogate emotional and psychological support 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.46

Results of consultation

• 5.53 We asked submitters which options they preferred to improve the ECART process. Of the 168 submissions that addressed this question, 63 per cent supported improving counselling requirements.47
• 5.54 A clear theme of submissions in support of improved counselling was a desire to see more counselling available for the surrogate as well as the intended parents in the later stages of pregnancy and after birth. One personal submitter with experience as an intended parent explained:

The support of the counselling team also abruptly stops after approval, as you enter the most challenging part of the process (the 9 months of pregnancy and beyond) there is no additional support unless you can afford to pay for it and seek it out. In my experience, the trauma of not being able to carry my own child was never addressed. When our first transfer failed our surrogate was very shaken, having been so positive in her ability to carry children and never having experienced loss, we needed to push hold for a few months to allow her to grieve and regroup. At this point surrogates need professional guidance and care.

• 5.55 Another personal submitter with experience as a traditional and gestational surrogate explained:

During my [gestational surrogacy] journey counselling was offered by the fertility clinic during treatments however I almost felt like they considered their job done once pregnant and no further contact was made. However during my [traditional surrogacy] (through a different clinic) the counsellor made regular contact during and after journey to check in on how things were going. I actually found this very beneficial and feel that there could very easily be many intended parents and surrogates that could benefit from this. The clinics offer that they can provide this but I actually think it should be a requirement to ensure things work out well.

⁴⁵ 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. See also Surrogacy Bill 2022 (50) (NT), cl 23.

⁴⁶ 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. 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 [20.3.31]–[20.3.36].

⁴⁷ 105 submissions comprising 88 personal submissions, 11 submissions from organisations (Australian and New Zealand Infertility Counsellors Association, Fertility Associates, Fertility New Zealand, Fertility Plus, Maternity Services Consumer Council, New Zealand Council of Trade Unions, New Zealand Nurses Organisation, Nurse Practitioners New Zealand, Oranga Tamariki | Ministry for Children, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society), comments from the Judges of the Family Court and 5 academic submissions (Dr Anne Else, Adjunct Professor Ken

Daniels, Dr Liezl van Zyl and Dr Ruth Walker (submitting jointly), Associate Professor Rhonda Shaw and Australian academics Associate Professor Kate Galloway, Professor Mary Keyes and Sarah Hoff (submitting jointly)).

• 5.56 However, some submitters who had experienced the ECART process as intended parents considered that the counselling provided by fertility clinics is already of a high standard and did not support further improvements. ECART similarly did not consider that there needs to be an improvement in counselling requirements. It noted that ECART’s expectations in terms of the matters that need to be addressed in counselling are clearly understood by clinics and that applications are deferred and further information requested if those matters have not been addressed.
• 5.57 Adjunct Professor Ken Daniels, a former ACART member, did support clarifying and developing the provision of counselling services as part of the application process, noting that counsellors do not necessarily agree on what their purpose or contribution is, which has, in his experience, led to inconsistent approaches.
• 5.58 Submitters expressed mixed views on whether counselling after ECART approval is given should be mandatory. ANZICA considered that post-birth counselling should not be mandatory but that it should be a more formalised process. It explained that it is best practice that support be offered throughout the surrogacy process, including during treatment, pregnancy and post-birth. It noted, however, that there were resourcing implications for increasing counselling. NZLS also supported additional counselling once pregnancy is established but did not consider that this should be mandatory. NZLS noted that:

Even well-meaning intended parents can become insensitive to the surrogate’s own needs and family situation once they have the newborn baby to focus on. Family lawyers practising in this area of law have experienced cases where surrogates have suffered considerable physical difficulties during pregnancy, at birth or following birth and are left feeling somewhat abandoned as the focus moves to the baby and intended parents.

• 5.59 Repromed, however, supported mandatory post-birth counselling requirements, observing that:

The clinic counsellors experience is that in the ECART counselling surrogates are often not anticipating the range of complex emotions which may arise during a pregnancy or post- birth. At Repromed we inform people we will follow up post-birth and do make these contacts. If all clinic counsellors were mandated to make contact post-birth this would ensure it happened for clients across all clinics. It would formalise the contact and counsellors would be supported by clinics to do this additional work. In making the post- birth counselling contact mandatory it still allows the client the option of taking up the support or not if they don’t believe they need it.

• 5.60 Oranga Tamariki also supported improved counselling requirements to highlight the importance of supporting a child’s right to identity, emotional transfer, and parental bonding and attachment. It supported mandating a discussion around a child’s right to identity as part of the counselling sessions.
• 5.61 Some submitters questioned whether counselling should be provided independently of the fertility clinic. One submitter who experienced the ECART process as an intended parent felt constrained in counselling, explaining that:

... knowing that my words and actions would be recorded and shared with the committee and potentially impact whether we were approved stopped us all from opening up to our counsellors.

RECOMMENDATION

Conclusions

• 5.62 Counselling is an integral part of the ECART process. It promotes the wellbeing of the parties involved in the surrogacy arrangement as well as any surrogate-born child.
• 5.63 Our review identified a high level of support for the quality of prior approval counselling. The current arrangements ensure that the parties have discussed the implications of the surrogacy arrangement and enable ECART to be satisfied that counselling has met the requirements of the ACART Guidelines. However, we acknowledge that, because the focus of prior approval counselling is on the implications of the surrogacy arrangement, some parties may still benefit from further therapeutic counselling provided outside the ECART process, independent from the clinics.
• 5.64 We agree with Oranga Tamariki that the current counselling requirements could be strengthened to highlight the importance of the identity rights of surrogate-born children. In Chapter 7, we recommend the establishment of a surrogacy birth register to record certain information about a child’s genetic and gestational origins and whakapapa. Counselling should address the rights of surrogate-born people to access information on this register. Counselling should also be required to address the parties’ plans for sharing identity information with the child. Currently, while the ACART Guidelines do require counselling to address how the health and wellbeing of any resulting child will be safeguarded,48 there is no explicit reference to surrogate-born children’s identity rights, although there is an explicit reference to the rights of donor-conceived people.49
• 5.65 As we explain in Chapter 3, non-disclosure of information about genetic and gestational origins can impact on a child’s rights to identity and can have a detrimental impact on their wellbeing if they later find out this information accidentally or in an unplanned way. Research involving donor-conceived people born in Aotearoa New Zealand before the introduction of the HART Act found there is a need to prioritise the long-term wellbeing of those who are donor-conceived, including through encouraging continuous conversations and openness.50 We consider this is equally relevant in the surrogacy context because, like donor-assisted conception, surrogacy can have life-long implications for surrogate-born people and future generations.

⁴⁸ 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)].

⁴⁹ 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)(a)].

⁵⁰ Samantha Best “The experience and wellbeing of donor-conceived adults” (MHSc dissertation, Te Wānanga Aronui o Tāmaki Makau Rau | Auckland University of Technology, 2021) at 77–79 and 82.

• 5.66 Recent years have seen increased awareness of the importance of surrogate-born children growing up with knowledge of their genetic and gestational origins.51 In te ao Māori, openness about a child’s genetic and gestational origins and whakapapa may be understood as consistent with the whakawhanaungatanga responsibilities of the intended parents, the surrogate and their respective whānau.52
• 5.67 However, some intended parents may still struggle with disclosure for a range of reasons, such as cultural, religious and social stigma or disapproval or concern that disclosure would harm the child-parent relationship or the child’s wellbeing.53 Others may want to be open but lack information or strategies about how best to share the information.
• 5.68 A psycho-educational approach54 to counselling is increasingly advocated alongside traditional therapeutic approaches to give intended parents information about how to talk with the child about their genetic and gestational origins and how to prepare for managing ongoing feelings in the context of family life and its social setting.55 It is argued that such an approach would better enable prospective parents to make well-informed decisions, meet the needs of the child and enhance family relationships.56 Dr Marilyn Crawshaw and Adjunct Professor Ken Daniels explain that, in practice, a psycho- educational approach could start pre-treatment by introducing early simple information and concepts and building on them, thus modelling how parents themselves might later talk with their children.57 Prior approval counselling could also raise the possibility of ongoing peer support (such as parenthood preparation groups) in the immediate and longer term as well as the potential usefulness of later professional support.58

⁵¹ Marilyn Crawshaw and others “Counselling challenges associated with donor conception and surrogacy treatments — time for debate” (2021) Human Fertility 1 at 4 (citations omitted).

⁵² See for example Leonie Pihama “Experiences of Whānau Māori within Fertility Clinics” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 203 at 205. In the whāngai context, it has been suggested that the open transmission of whakapapa knowledge is key to making complex, wider notions of parenting work, given the diversity of Māori whānau, and that there needs to be an openness about whānau, hapū and iwi origins: Cherryl Smith “Tamaiti Whāngai and Fertility” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 143 at 201.

⁵³ See discussion of relevant research in Marilyn Crawshaw and Ken Daniels “Revisiting the use of ‘counselling’ as a means of preparing prospective parents to meet the emerging psychosocial needs of families that have used gamete donation” (2019) 8 Families, Relationships and Societies 395 at 399–411.

⁵⁴ A psycho-educational approach is described as “a combination of information- and knowledge-sharing with strategy building delivered within a supportive and emotionally alert relationship that pays attention to individual, family and social contexts”: Marilyn Crawshaw and Ken Daniels “Revisiting the use of ‘counselling’ as a means of preparing prospective parents to meet the emerging psychosocial needs of families that have used gamete donation” (2019) 8 Families, Relationships and Societies 395 at 398.

⁵⁵ See Marilyn Crawshaw and others “Counselling challenges associated with donor conception and surrogacy treatments

— time for debate” (2021) Human Fertility 1 at 3 and 5; and Marilyn Crawshaw and Ken Daniels “Revisiting the use of ‘counselling’ as a means of preparing prospective parents to meet the emerging psychosocial needs of families that have used gamete donation” (2019) 8 Families, Relationships and Societies 395 at 398.

⁵⁶ Marilyn Crawshaw and Ken Daniels “Revisiting the use of ‘counselling’ as a means of preparing prospective parents to meet the emerging psychosocial needs of families that have used gamete donation” (2019) 8 Families, Relationships and Societies 395 at 398. Discussion in this article is concerned with donor-conception but we consider the same principles apply to surrogacy as another form of third-party assisted reproduction.

⁵⁷ Marilyn Crawshaw and Ken Daniels “Revisiting the use of ‘counselling’ as a means of preparing prospective parents to meet the emerging psychosocial needs of families that have used gamete donation” (2019) 8 Families, Relationships and Societies 395 at 402.

⁵⁸ Marilyn Crawshaw and Ken Daniels “Revisiting the use of ‘counselling’ as a means of preparing prospective parents to meet the emerging psychosocial needs of families that have used gamete donation” (2019) 8 Families, Relationships and Societies 395 at 402.

• 5.69 We consider that there is merit in ACART taking account of this work and providing greater guidance about what the role of counsellors in safeguarding the health and wellbeing of the child requires in practice.
• 5.70 This is consistent with our recommendation in Chapter 7 to include an additional principle in section 4 of the HART Act stating that surrogate-born people should be made aware of their genetic and gestational origins and whakapapa and be able to access information about those origins. This would also be consistent with Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 (Ngā Paerewa), which requires service providers to “encourage and support people to inform offspring of their genetic and gestational origins”.59 It would also align with the Verona Principles, which recommend that pre- surrogacy arrangements address communication about the child’s origins, recognising that a child’s ability to preserve their identity, including their genetic and gestational origins, “has an on-going, lifetime impact on the child”.60

Ongoing counselling requirements

• 5.71 We do not make any specific recommendations in relation to encouraging greater use of counselling after a surrogacy arrangement is approved by ECART. It is already a requirement that ECART must be satisfied that counselling will be made available to all parties before and after pregnancy is achieved,61 and ongoing access to counselling would be a sensible matter to include in the parties’ surrogacy plan, discussed above.

SUPPORTING MĀORI TO ACT IN ACCORDANCE WITH TIKANGA

Current law

• 5.72 A principle of the 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.62
• 5.73 The ACART Guidelines require that counselling is “culturally appropriate” and ECART must be satisfied that counselling “has provided for whānau and extended family involvement”.63

Issues

• 5.74 In the Issues Paper, we observed that it was not clear whether the HART Act and the ACART Guidelines are currently meeting the needs of Māori who wish to engage with and

⁵⁹ Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 at [1.10.1].

⁶⁰ International Social Service Principles for the protection of the rights of the child born through surrogacy (Verona principles) (Geneva, 2021) at [5.5(g)] and [11.1]. See also UNICEF and Child Identity Protection Key Considerations: Children’s Rights & Surrogacy (Briefing Note, February 2022) at 3 and International Principles for Donor Conception and Surrogacy (November 2019) at [11].

⁶¹ 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)].

⁶² Human Assisted Reproductive Technology Act 2004, s 4(f). At [5.3], n 2 above, we noted that a review of the HART Act could consider whether this principle adequately recognises tikanga Māori and gives effect to the Crown’s obligations under te Tiriti o Waitangi.

⁶³ 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(4)].

act in accordance with tikanga in a surrogacy arrangement.64 In Chapter 2, we explain that surrogacy engages many aspects of te ao Māori, including the tikanga of whanaungatanga, which may mean whānau are involved in decision-making in a surrogacy arrangement. In Chapter 3, we discuss how te Tiriti o Waitangi means that Māori must be able to act in accordance with tikanga should they wish to do so.

Results of consultation

• 5.75 We asked submitters whether they agreed that surrogacy law and regulation should enable Māori to act in accordance with tikanga if they wish to do so. We received 128 submissions that addressed this question. Of these submissions, 78 per cent agreed,65 five per cent did not agree66 and 17 per cent expressed no view.67
• 5.76 Submitters made a variety of comments on this question. Two personal submitters who identified as Māori responded “of course” and “we will anyway”. Another personal submitter supported “having a Māori policy which embraces their traditional values and ways of doing things”. Some submitters, including Ngā Rangahautira, emphasised the ability for tikanga to adapt and develop and to vary across iwi, hapū and whānau. Several submitters considered that surrogacy law and regulation should not restrict or prohibit Māori acting in accordance with tikanga.
• 5.77 In the Issues Paper, we identified three possible options for reform:

(a) Option One: 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) Option Two: Requiring counsellors to engage local kaumātua and hapū for cultural support where Māori do not feel that they have sufficient knowledge within their own whānau or hapū to act in accordance with tikanga.

(c) Option Three: Conducting further research to better understand ao Māori perspectives on surrogacy and developing guidelines to assist ECART and others exercising powers or functions under the legislation.

⁶⁴ Research conducted between 2007 and 2010 examined Māori experiences within fertility clinics and identified a general view that fertility clinics are not well equipped to deal with whānau Māori: Leonie Pihama “Experiences of Whānau Māori within Fertility Clinics” in Paul Reynolds and Cherryl Smith (eds) The Gift of Children: Māori and Infertility (Huia Publishers, Wellington, 2012) 203 at 234. Some research participants felt that the fertility clinic experience had no cultural acknowledgement of them as Māori, that fertility professionals lacked an understanding of the significance of whakapapa and that there was a concerning lack of access to Māori-focused resources or information, at 223–227.

⁶⁵ 100 submissions comprising 84 personal submissions, 12 submissions from organisations (Advisory Committee on Assisted Reproductive Technology, Australian and New Zealand Infertility Counsellors Association, Fertility Associates, Fertility New Zealand, Fertility Plus, New Zealand Council of Trade Unions, New Zealand Nurses Organisation, Ngā Rangahautira, Nurse Practitioners New Zealand, Office of the Children’s Commissioner, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society), comments from the Judges of the Family Court and 3 academic submissions (Adjunct Professor Ken Daniels, Professor Mark Henaghan and Associate Professor Rhonda Shaw).

⁶⁶ 6 personal submissions.

⁶⁷ 22 submissions comprising 21 personal submissions and 1 submission from an organisation (Federation of Women’s Health Councils Aotearoa).

• 5.78 Submitters expressed mixed views on these options.68 Of the 139 submissions that addressed this question, 53 per cent supported Option One,69 45 per cent supported Option Two,70 53 per cent supported Option Three,71 2 per cent preferred another option72 and 29 per cent expressed no view.73
• 5.79 Several submitters supported all three options, including ANZICA, New Zealand Nurses Organisation (NZNO), Ngā Rangahautira, Fertility Plus, Office of the Children’s Commissioner (OCC) and Repromed. ANZICA submitted that each of the options identified used in combination “would support Māori to act in accordance with tikanga”. NZNO said the system needs a whānau-centred approach and emphasised the importance of whanaungatanga. Ngā Rangahautira submitted:

We agree with the options proposed by the Commission, and we hope these options can be implemented all together opposed to a ‘one or the other’ approach. Holistic support within processes for Māori to act in accordance with tikanga is needed. This needs to include services that are front facing, such as counsellors having expertise in tikanga Māori and engaging with kaumatua, as well as the guidelines that will trickle down into practice. It will ensure that wāhine Māori are respected and supported at every step of the process.

• 5.80 In relation to improving counselling (Options One and Two), OCC observed that, given counselling must be “culturally appropriate” under the HART Act, the availability of culturally appropriate counselling, particularly Māori practitioners for Māori participants in fertility treatment, “is imperative”. Further, OCC submitted that:

People seeking surrogacy services should be able to identify the mātauranga Māori experts they prefer, and clinics should support them to be involved, eg with counsellors. It should be a partnership decision between Māori and the clinic. It may take time for relationships between clinics and local kaumatua to develop, that can help them to identify Māori practitioners.

• 5.81 Several submitters, including ACART, Fertility Plus and Fertility Associates, supported a mechanism for professionals in this area to access guidance from Māori cultural leaders and experts.
• 5.82 In relation to the need for further research (Option Three), ANZICA thought research would be “useful” and Repromed considered it “necessary to honour commitments as Te

⁶⁸ Some submitters preferred more than one option, meaning the percentage of submissions referred to in relation to each option do not add up to 100.

⁶⁹ 73 submissions comprising 63 personal submissions, 9 submissions from organisations (Australian and New Zealand Infertility Counsellors Association, Fertility Plus, New Zealand Council of Trade Unions, New Zealand Nurses Organisation, Ngā Rangahautira, Nurse Practitioners New Zealand, Office of the Children’s Commissioner, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society) and 1 academic submission (Associate Professor Rhonda Shaw).

⁷⁰ 63 submissions comprising 54 personal submissions, 7 submissions from organisations (Australian and New Zealand Infertility Counsellors Association, Fertility Plus, New Zealand Nurses Organisation, Ngā Rangahautira, Office of the Children’s Commissioner, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society) and 2 academic submissions (Adjunct Professor Ken Daniels and Associate Professor Rhonda Shaw).

⁷¹ 74 submissions comprising 63 personal submissions and 11 submissions from organisations (Australian and New Zealand Infertility Counsellors Association, Ethics Committee on Assisted Reproductive Technology, Fertility New Zealand, Fertility Plus, New Zealand Council of Trade Unions, New Zealand Nurses Organisation, Ngā Rangahautira, Office of the Children’s Commissioner, Oranga Tamariki | Ministry for Children, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society).

⁷² 3 personal submissions.

⁷³ 40 submissions comprising 39 personal submissions and 1 submission from an organisation (Federation of Women’s Health Councils Aotearoa).

Tiriti partners”. Oranga Tamariki also supported consideration being given to funding publicly available research “with a view to better understanding an indigenous te ao Māori perspective on surrogacy”. OCC stressed the importance of direct discussion with hapū and iwi on these matters:

We support research, in general, to better understand Māori perspectives on health services, fertility and family formation generally and surrogacy as one of those. OCC supports Māori led discussion on this issue and by Māori for Māori approaches.

RECOMMENDATION

Conclusions

• 5.83 Our review has identified a gap between the general requirements of the HART Act and the ACART Guidelines and what it means in practice to ensure that counselling meets the needs of Māori. There is little guidance around supporting Māori to act in accordance with tikanga beyond the requirement that counselling provide for whānau involvement (which is important for Māori given the significance of whanaungatanga and whakapapa, as we discuss in Chapter 2).
• 5.84 We recommend ACART provide further guidance or advice74 to ECART on what matters ECART should consider when determining whether counselling has been “culturally appropriate” from an ao Māori perspective.75 Such guidance or advice would then support counsellors who are performing this role to understand what is required to meet the current criteria for approval. We would expect this guidance or advice to address matters such as the need for parties in a surrogacy arrangement to have the options of including a tikanga expert and/or member(s) of their whānau or hapū in counselling and when it may be appropriate for counsellors to engage directly with hapū on behalf of a party (for example, if a counsellor lacks the necessary expertise but a participant wishes to seek advice on tikanga-based practices). The guidance or advice should also address the availability of whāngai arrangements in a surrogacy context, as we discuss in Chapter 6.
• 5.85 We consider this would facilitate the exercise of tino rangatiratanga through recognising tikanga Māori in light of the commitment in te Tiriti to enable Māori to live according to tikanga. There is an obligation on the Crown to ensure health services are culturally appropriate and kaupapa Māori solutions are available to Māori in a way that they are not

⁷⁴ Under the Human Assisted Reproductive Technology Act 2004, the Advisory Committee on Assisted Reproductive Technology can “issue guidelines and give advice to the ethics committee on any matter relating to any kind of assisted reproductive procedure”: s 35(1)(b).

⁷⁵ As required under 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)].

disadvantaged by their choices.76 This recommendation would also support fertility clinics to comply with Ngā Paerewa, which requires service providers to recognise and commit to Māori mana motuhake and provide culturally safe services for Māori.77

• 5.86 The process by which ACART develops guidance or advice is important. ACART should ensure that any guidelines or advice are prepared in consultation with iwi, hapū, whānau and Māori health providers. Once further research has been undertaken to better understand tikanga Māori and surrogacy and Māori perspectives on surrogacy in practice (see R1), these guidelines or advice should be revisited to build on that knowledge base.

DURATION OF ECART APPROVALS

Current law

• 5.87 Under the HART Act, ECART can limit the duration of any approval of a surrogacy arrangement as it thinks fit.78 Its current practice is to impose a three-year time limit on all surrogacy approvals. It can extend an approval when a request is made and currently does so in situations where there have been no significant changes and the parties simply wish to extend the time to continue with treatment. In situations where there has been a significant change in circumstances, for example, the applicants wish to use a new surrogate, ECART considers the application anew.

Issues

• 5.88 In the Issues Paper, we observed that it may take a long time for a surrogate to become pregnant and that the current time limit on the duration of ECART surrogacy approvals can create further cost, administrative burden and delay in some circumstances.
• 5.89 The existing time limit also means that the parties must reapply to ECART in situations where the surrogate offers to carry a subsequent child for the intended parents as it will be unlikely that a subsequent pregnancy will be achieved within the three-year timeframe.

Results of consultation

• 5.90 We asked submitters which options they preferred to improve the ECART process. Of the 168 submissions that addressed this question, 58 per cent supported extending the time limit for ECART surrogacy approvals.79
• 5.91 ANZICA, Repromed, Fertility Associates, NZLS and the Judges of the Family Court supported a five-year period rather than eliminating time limits altogether. ANZICA and Repromed noted that, if treatment has not commenced after five years, it is important

⁷⁶ 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.

⁷⁷ Ngā Paerewa Health and Disability Services Standard NZS 8134:2021 at [1.3]–[1.5].

⁷⁸ Human Assisted Reproductive Technology Act 2004, s 19(3)(a).

⁷⁹ 97 submissions comprising 84 personal submissions, 8 submissions from organisations (Australian and New Zealand Infertility Counsellors Association, Fertility Associates, Maternity Services Consumer Council, Nurse Practitioners New Zealand, Office of the Children’s Commissioner, Oranga Tamariki | Ministry for Children, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society), comments from the Judges of the Family Court and 4 academic submissions (Dr Anne Else, Adjunct Professor Ken Daniels, Dr Liezl van Zyl and Dr Ruth Walker (submitting jointly) and Associate Professor Rhonda Shaw).

that arrangements are reviewed due to the nature of these arrangements and in recognition of changes to people’s lives and feelings over time. In their joint submission, Dr Liezl van Zyl and Dr Ruth Walker supported a period of 6–8 years and an expedited process for intended parents reapplying with a new surrogate.

• 5.92 The Maternity Services Consumer Council (MSCC) preferred a streamlined process be put in place for intended parents who fall outside the three-year limit and for those who are seeking approval for a subsequent surrogacy arrangement to expand their families rather than a longer time for approval to remain in place. Dr Else preferred allowing for a time extension on a case-by-case basis only, to accommodate the rare instances where this is sought.
• 5.93 ACART did not have a strong position on this option, although it did note that ECART makes its decision based on a set of facts that will change over time and the further away from the original approval date, the more likely it is that the current circumstances have deviated from the original application, which may increase risk. That said, ACART recognised that, because it may take some time for the surrogate to become pregnant and that sometimes there are delays with treatment for various reasons, three years might be too short.

RECOMMENDATION

Conclusions

• 5.94 We consider that the questions of how long a surrogacy approval should remain in place, when an extension to an approval will be considered and the process for making and determining applications for extensions are all matters that could usefully be addressed in advice or guidance issued by ACART. This would be consistent with ACART’s function “to issue guidelines and give advice to the ethics committee on any matter relating to any kind of assisted reproductive procedure”.80 Having a clear, written policy or approach to these matters would provide greater certainty.
• 5.95 Such guidance or advice would need to balance the concerns identified in consultation that, in some cases, a pregnancy may not be achieved within three years against the risk that circumstances change significantly in that time.81 There may be a need to put in place safeguards for extension applications, such as a requirement for an additional joint counselling session, to ensure that all the parties continue to give their informed consent

⁸⁰ Human Assisted Reproductive Technology Act 2004, s 35(1)(a).

⁸¹ We note that comparable jurisdictions take different approaches. There is no statutory time limit on approvals in Victoria under the Assisted Reproductive Treatment Act 2008 (Vic). In Ireland, An Bille Sláinte (Atáirgeadh Daonna Cuidithe) | Health (Assisted Human Reproduction) Bill 2022 (29) (Ireland) proposes a maximum time limit of 2 years on approvals: cl 51(4). In South Africa, court confirmation of a surrogacy agreement lapses 18 months after the date of confirmation: Children’s Act 2005 (South Africa), s 296(1)(b).

to the arrangement. Any guidance or advice should also address situations where the surrogate has successfully carried a child for the intended parents and has offered to carry another child. We note, by way of example, the guidance that has been issued in relation to the Patient Review Panel in the Australian state of Victoria.82

REVIEWING ECART DECISIONS

Current law

• 5.96 The HART Act does not explicitly provide for a right of appeal in relation to decisions made by ECART to decline an application for approval of a surrogacy arrangement, although ECART can reconsider an application it has previously declined if relevant new information becomes available.83
• 5.97 While decisions made by ECART could be subject to judicial review by te Kōti Matua | High Court,84 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 to decline an application.

Issues

• 5.98 In the Issues Paper, we said that the lack of a clear appeal or review process may be a concern given the significance of a decision by ECART to decline an application. For people whose applications are declined, it may mean the end of their journey to build a family or it may mean that they pursue international surrogacy or enter a private traditional surrogacy arrangement, neither of which require ECART approval.
• 5.99 The lack of any process for independent review or appeal of ECART decisions is a recognised issue. Professor Nicola Peart has said that the absence of a specially designated appeal process “is troubling when individuals’ reproductive opportunities are at stake”.85 Dr Jeanne Snelling has argued that this “is a substantial barrier to ECART achieving transparency and fairness, and may affect public confidence in the decision- making process”.86 It is also out of step with the arrangements in place for other health and disability ethics committees administered by Manatū Hauora | Ministry of Health, which operate with an established review and appeal process.87

⁸² Patient Review Panel Applications for approval of a surrogacy arrangement: Guidance note (Victoria, July 2021) at 14– 15.

⁸³ Human Assisted Reproductive Technology Act 2004, s 18(3).

⁸⁴ Pursuant to the Judicial Review Procedure Act 2016.

⁸⁵ Nicola Peart “Alternative Means of Reproduction” in Peter Skegg and others Health Law — A to Z of New Zealand Law

(online ed, Thomson Reuters) at [30.17.2].

⁸⁶ Jeanne Snelling “Law and Regulation” in Human Genome Research Project Choosing Genes for Future Children: Regulating Preimplantation Genetic Diagnosis (Te Whare Wānanga o Ōtākou | University of Otago, Dunedin, 2006) 229 at 252.

⁸⁷ Manatū Hauora | Ministry of Health Standard Operating Procedures for Health and Disability Ethics Committees (December 2019), ch 9. The need for an independent appeal from ethics committees was highlighted in A P Duffy, D K Barrett and M A Duggan Report of the Ministerial Inquiry into the Under-Reporting of Cervical Smear Abnormalities in the Gisborne Region (Manatū Hauora | Ministry of Health, April 2001), which recommended consideration be given to providing for an independent appeal process, at [11.23]. Following that report, the Minister authorised the Health

• 5.100 It is unclear why no right of review or appeal exists for ECART decisions. The predecessor to ECART, the National Ethics Committee on Assisted Human Reproduction, did provide in its terms of reference a process for independent review,88 although the lack of any statutory right of appeal was considered “problematic”.89 One possible reason may have been an expectation that the same operational procedures (including appeal procedures) that applied to health and disability ethics committees would also apply to ECART. The HART Act provides that ECART is subject to any applicable ethical standards determined by the National Ethics Advisory Committee (NEAC).90 However, in practice, ethical standards are largely irrelevant to ECART’s role in relation to assisted reproductive procedures. The appeal procedures that apply to health and disability committees are set out in standard operating procedures determined by the Ministry of Health rather than ethical standards determined by NEAC.91

Results of consultation

• 5.101 We asked submitters which options they preferred to improve the ECART process. Of the 168 submissions that addressed this question, 64 per cent supported an appeal or review process for applications that are declined by ECART.92
• 5.102 Fertility Associates noted that this may allow for ECART to be more measured in its approval “since saying ‘no’ now means ‘no’ forever”. The Judges of the Family Court considered that a mechanism for appeal or review would provide a further safeguard to ensure that the process remains fair and is administered appropriately.
• 5.103 Several submitters, including ANZICA, Repromed and Dr Else, supported the establishment of a review panel to conduct an independent review of ECART decisions

Research Council Ethics Committee to undertake the additional function of considering appeals against decisions made by health and disability ethics committees by written notice issued under s 25(1)(h)(ii) of the Health Research Council Act 1990.

⁸⁸ The terms of reference for the National Ethics Committee on Assisted Human Reproduction (NECAHR) provided for applicants to request a review of any new information by NECAHR, and if parties are not satisfied with the outcome of the review, the issue should be referred to the Director-General of Health (or the Health Research Council Ethics Committee in the case of issues relating to health research). An independent person or group would then be appointed by the Director-General to undertake a review of the decision-making process used by the committee. The terms of reference for NECAHR were published in National Ethics Committee on Assisted Human Reproduction Annual Report to the Minister of Health for the year ending 31 December 2001 (Manatū Hauora | Ministry of Health, Wellington, 2002) at 12–13.

⁸⁹ Crown Law’s advice to the National Ethics Advisory Committee stated that the lack of any statutory right of appeal from the National Ethics Committee on Assisted Human Reproduction (NECAHR) was “somewhat more problematic” than the lack of appeal right from the National Ethics Advisory Committee, given that NECAHR “has the function of reviewing assisted human reproductive proposals (i.e. making decisions with impact on third parties)”. Crown Law Office Second opinion and appeal processes for ethical review (6 August 2003) at [12], published in National Ethics Advisory

Committee System of Ethical Review of Health and Disability Research in New Zealand: Discussion Document (Manatū Hauora | Ministry of Health, September 2003), Appendix 2.

⁹⁰ Human Assisted Reproductive Technology Act 2004, s 27(4). See also s 27(3)(a), which requires the Minister to ensure the committee complies in its composition with any applicable standard governing ethics committees determined by the National Ethics Advisory Committee.

⁹¹ Manatū Hauora | Ministry of Health Standard Operating Procedures for Health and Disability Ethics Committees

(December 2019) at [3].

⁹² 108 submissions comprising 95 personal submissions, 9 submissions from organisations (Australian and New Zealand Infertility Counsellors Association, Fertility Associates, Fertility New Zealand, Fertility Plus, Maternity Services Consumer Council, New Zealand Council of Trade Unions, Nurse Practitioners New Zealand, Oranga Tamariki | Ministry for Children and Repromed), comments from the Judges of the Family Court and 3 academic submissions (Dr Anne Else, Adjunct Professor Ken Daniels and Associate Professor Rhonda Shaw).

declining approval, where sought. ANZICA and Repromed noted that the panel could comprise independent experts, which could include ACART and/or Ministry of Health representation. If dissatisfaction remained, they submitted that further review could be accessed through the Health and Disability Commission. ANZICA, Fertility Plus and Repromed noted that any review or appeal process needs to be clearly documented and accessible.

• 5.104 However, some submitters did not support an independent appeal or review process. These submitters noted that very few applications are declined and that there is a form of review process already in place. ECART explained that it has the power to reconsider an application if relevant new information becomes available, which it has interpreted as a review mechanism that allows it to review any decline decision at the request of the applicant. It notes that, in the past six years, there has been only one such application for review. ECART agreed that it was appropriate to continue to provide for a review process and said it will consider making specific reference to the review mechanism in its terms of reference and in all decline decision letters going forward. ECART did not support an appeal process. It noted its mandate as an expert body with specialist perspectives and did not consider that this type of decision is amenable to appeal. Adjunct Professor Daniels submitted that the current system needs to be clarified and formalised. In their joint submission Dr van Zyl and Dr Walker were not in favour of an appeal or review process, assuming that ECART would only decline an application if there is a significant problem that cannot be rectified.

RECOMMENDATION

Conclusions

Instituting independent review of ECART decisions

• 5.105 A decision made by ECART to decline a surrogacy application can have a significant impact on the applicants’ lives. For some people, it may bring an end to their hopes of growing their family. Others might turn to surrogacy outside the ECART process, potentially putting the parties at greater risk.
• 5.106 When legislation authorises decisions that affect individual rights, interests or legitimate expectations, there generally ought to be an opportunity for challenge by way of

independent appeal or review.93 This serves to correct error, to supervise and improve decision-making at first instance and to help maintain public confidence in the legal system.94 Given the significance of ECART decisions to individual interests, we consider it is important that applicants have options to challenge these decisions.

• 5.107 We consider that the current arrangements (reconsideration of new information by ECART and judicial review) are inadequate. Where individual rights and interests are at stake, a review process that is independent from the original decision-maker is central to the maintenance of the rule of law.95 The perception of independence is in many ways as important as the reality of independence as it goes to the question of public confidence in the decision-making process.96 Independent review also promotes accountability and, as Fertility Associates noted, may allow for ECART to be more measured in its approval.
• 5.108 While judicial review provides an independent review, it is largely concerned with the process leading to a decision rather than re-evaluating the merits of the decision reached.97 It can also be costly and time consuming. For these reasons it is not generally considered as effective or desirable as a right of appeal to an established body. 98 The limitations of judicial review are even more pronounced in the specific context of ECART decision-making given the committee’s specialist expertise. As the High Court has observed:99

The ethical and moral dilemmas that arise in the area of assisted human reproduction are not well suited to judicial intervention. Parliament has made a deliberate decision to entrust evaluation of competing policy considerations to the Advisory Committee, with its power “to issue guidelines and give advice to the [Ethics Committee] on any matter relating to any kind of assisted reproductive procedure ... and to keep such guidelines and advice under review”. Similarly, the Ethics Committee has been empowered to make decisions in respect of assisted reproductive procedures that are not classified as “established”.

Parliament’s decision to create specialist bodies (from whose decisions there are no rights of appeal) recognises that the mix of scientific, ethical, cultural, spiritual and moral factors at play are not readily justiciable. While judicial review might lie from a decision of the Ethics Committee, the grounds on which the High Court might exercise its jurisdiction are likely to be narrow. As Venning J observed, in New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd, the High Court “should not seek to determine or resolve scientific questions demanding the evaluation of contentious expert opinion”. That concern exacerbates when the decision-making involved extends to moral, ethical, cultural and spiritual considerations.

• 5.109 ECART’s view, noted above, was that its specialist expertise means that its decisions are not of a type that are amenable to appeal. While the expertise of the decision-maker can

⁹³ Te Aka Matua o te Ture | Law Commission Tribunal Reform (NZLC SP20, 2008) at [2.30]. See also Legislation Design and Advisory Committee Legislation Guidelines (September 2021) at 140.

⁹⁴ Te Aka Matua o te Ture | Law Commission Tribunal Reform (NZLC SP20, 2008) at [2.30].

⁹⁵ Te Aka Matua o te Ture | Law Commission Tribunal Reform (NZLC SP20, 2008) at [2.14] and Te Aka Matua o te Ture | Law Commission Tribunals in New Zealand (NZLC IP6, 2008) at [2.31]–[2.32].

⁹⁶ Te Aka Matua o te Ture | Law Commission Tribunals in New Zealand (NZLC IP6, 2008) at [5.1].

⁹⁷ Legislation Design and Advisory Committee Legislation Guidelines (September 2021) at 140 and Te Aka Matua o te Ture

| Law Commission Tribunals in New Zealand (NZLC IP6, 2008) at [2.61].

⁹⁸ Te Aka Matua o te Ture | Law Commission Tribunals in New Zealand (NZLC IP6, 2008) at [8.3] and Jeanne Snelling “Law and Regulation” in Human Genome Research Project Choosing Genes for Future Children: Regulating Preimplantation Genetic Diagnosis (Te Whare Wānanga o Ōtākou | University of Otago, Dunedin, 2006) 229 at 252.

⁹⁹ Re Long [2017] NZHC 3263 at [92]–[93] (citations omitted).

be a reason for not providing a right of appeal100 and we acknowledge ECART’s specialist expertise, we do not think this is an adequate reason to deprive applicants of a right of independent review, given the significance of ECART decisions. As noted above, the lack of independent review is out of step with the approach in relation to other health and disability ethics committees. It is also inconsistent with the review procedures in place for decisions to decline to approve a surrogacy arrangement in the Australian state of Victoria.101

• 5.110 We acknowledge that, to date, very few applications have been declined by ECART. However, in Chapter 4, we explain that surrogacy applications to ECART are increasing in number. In its submission on the Issues Paper, ACART explained that surrogacy arrangements are becoming increasingly more complicated. We think it is critical that the regulatory framework anticipates and provides for an increase in the number of applications that are declined in future. We also think that decisions to defer an application or to impose conditions on an approval should be reviewable as these types of decisions can still be significant and may, in practice, have the same effect as a decision to decline approval.102 While ECART reports that only one application for review has been received in the past six years, this may be attributable to the lack of a clearly documented review process that is independent of ECART.

Practical, simple and low-cost review mechanism

• 5.111 Ultimately, we see value in adopting a flexible and low-cost model that can provide an efficient method of review following simple and expedited procedures. We recommend the Government consider establishing a panel of individuals who can be appointed to review a decision as and when required. Panellists should have expertise that generally reflects the mix of legal, medical and ethical expertise of ECART. It should also include Māori representation in line with ECART. These members could, for example, be previous members of ACART and ECART. It may be appropriate to appoint three panellists to undertake any review so that relevant expertise is available.
• 5.112 We considered but discounted reviews being conducted by an existing body. As noted above, the specialist nature of ECART decisions means an appeal to a court of general jurisdiction may be inappropriate.103 While ACART has the necessary expertise to review

¹⁰⁰ Legislation Design and Advisory Committee Legislation Guidelines (September 2021) at 140.

¹⁰¹ In Victoria, decisions to decline approval of a surrogacy arrangement by the Patient Review Panel can be reviewed by the Victorian Civil and Administrative Tribunal: Assisted Reproductive Treatment Act 2008 (Vic), s 96. In Ireland, An Bille Sláinte (Atáirgeadh Daonna Cuidithe) | Health (Assisted Human Reproduction) Bill 2022 (29) (Ireland) does not provide an independent right of appeal of decisions to decline approval, but it does require the Assisted Human Reproduction Regulatory Authority, “in the interests of procedural fairness”, to give notice in writing to the applicant where the

Authority is minded to refuse to approve a surrogacy agreement and give the applicant an opportunity to provide supplementary material for the Authority’s further consideration before making a determination: cl 51(5).

¹⁰² For example, the Ethics Committee on Assisted Reproductive Technology may defer an application until the surrogate achieves a certain body mass index (BMI). Such a decision may have the same effect as a decision to decline if the surrogate is unable to achieve the required weight loss. See for example Ethics Committee on Assisted Reproductive Technology minutes of 5 September 2019 at [6] (application E19/80). That application was subsequently approved once the required BMI was achieved: Ethics Committee on Assisted Reproductive Technology minutes of 29 October 2020 at [15].

¹⁰³ The Legislation Guidelines explain that courts of general jurisdiction are more appropriate for second appeals from specialist courts or for first appeals where general matters of criminal or civil law are involved, whereas a specialist

ECART decisions, it would be inappropriate to extend ACART’s functions in this way given its current responsibility for setting the guidelines that ECART must apply in practice. The Health Research Council Ethics Committee (HRCEC) is responsible for hearing appeals from health and disability committees. However, the focus of these committees is on research rather than assisted reproductive procedures, and HRCEC’s membership and constitution reflects that focus.104 Changes to HRCEC’s membership and composition would be necessary, for example, through the establishment of an ad hoc subcommittee with appropriate expertise, if it were to take on the role of reviewing ECART decisions in relation to surrogacy arrangements.

• 5.113 Reviews should be by way of rehearing.105 This means that the reviewers should come to their own conclusion based on the material presented to ECART and any further information that is permitted. This ensures the focus of the review is on whether ECART properly interpreted and applied any relevant ACART guidelines or advice in reaching its decision.106 The reviewers should be able to affirm the decision under review, vary the decision or set it aside and either substitute it with its own decision or refer the matter back to ECART for reconsideration with any directions or recommendations it makes.
• 5.114 The procedure adopted to review decisions on surrogacy arrangements in Victoria107 and for independent reviewers under the Accident Compensation Act 2001108 provide useful models. Consideration should be given to imposing time limits on making an application for review109 and on the review being concluded.110

Review rights for other types of ECART decisions

• 5.115 Our recommendations are limited to decisions made on surrogacy applications given the scope of our terms of reference. However, our view is that it would be appropriate to provide a right of review for all decisions made by ECART. All applications concerning assisted reproductive procedures have significant consequences for individual rights and interests. While human reproductive research may not affect individual interests in the

body will generally be appropriate for first appeals from decision-makers in narrow fields or in cases that require technical expertise: Legislation Design and Advisory Committee Legislation Guidelines (September 2021) at 141. In Victoria, a right of appeal exists to the Victorian Civil and Administrative Tribunal (see [5.109], n 101 above). However, there is no comparable tribunal in Aotearoa New Zealand.

¹⁰⁴ Health Research Council Act 1990, s 26.

¹⁰⁵ Reviews by way of rehearing is a common form of appeal, and in 2008, the Commission recommended that it should continue to be the procedure used for most rights of appeal from tribunal decisions: Te Aka Matua o te Ture | Law Commission Tribunal Reform (NZLC SP20, 2008) at [8.28]. The working definition of “tribunal” used for the purpose of that project was focused on the primary characteristics of tribunals, many of which are arguably shared by the Ethics Committee on Assisted Reproductive Technology, namely, that they determine questions affecting people’s rights, they do this by considering facts and evidence and applying standards (generally rules or policies) to the facts, they exercise a defined specialist jurisdiction and they are independent from the executive, at [2.11].

¹⁰⁶ As required under Human Assisted Reproductive Technology Act 2004, ss 19(2) and 29(a).

¹⁰⁷ See Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 49–51.

¹⁰⁸ See Accident Compensation Act 2001, ss 134–148.

¹⁰⁹ In Victoria, an application for review must be made within 28 days after the day on which the decision was made: Assisted Reproductive Treatment Act 2008 (Vic), s 98.

¹¹⁰ We note that independent reviewers under the Accident Compensation Act 2001 must make a review decision within 28 days after the day on which the hearing finishes (or the day on which the applicants would have been entitled to have a hearing or agreed not to have a hearing): s 144(1).

same way, we suggest the same approach to other health and disability ethics committee decisions on research should be followed.

COMPOSITION OF ACART AND ECART

Current law

• 5.116 ACART is a committee established by the Minister of Heath.111 The HART Act prescribes comprehensive membership requirements for ACART. It must consist of between eight and 12 members and must include members with expertise in assisted reproductive procedures, human reproductive research, ethics and law.112 In addition, ACART must include one or more Māori members with expertise in Māori customary values and practice and the ability to articulate issues from a Māori perspective113 and at least one member with the ability to articulate issues from a consumer perspective.114 Finally, at least one member must be the Children’s Commissioner or a representative or employee of the Office of the Children’s Commissioner with the ability to articulate the interests of children.115
• 5.117 ECART is also a committee established by the Minister of Health.116 ECART’s membership is not as comprehensively prescribed under the HART Act, although the HART Act does require at least one member with expertise in the areas of assisted reproductive procedures and human reproductive research.117 Otherwise, ECART membership requirements are set out in its terms of reference, which state that ECART must consist of between eight and 12 members and must include members with expertise in ethics and law as well as members with the ability to articulate issues from a consumer perspective and a disability perspective.118 ECART’s terms of reference also require that at least two ECART members must be Māori with “a recognised awareness of te reo Māori, and an understanding of tikanga Māori”.119 All ECART members “are expected to have an understanding of how the health sector responds to Māori issues and their application to ethical review”.120

Issues

• 5.118 In the Issues Paper, we identified several potential issues with the membership requirements for ACART and ECART.

¹¹¹ Human Assisted Reproductive Technology Act 2004, s 32.

¹¹² Human Assisted Reproductive Technology Act 2004, ss 33(1) and 34(4)(a)–(c) and (f).

¹¹³ Human Assisted Reproductive Technology Act 2004, s 34(4)(d).

¹¹⁴ Human Assisted Reproductive Technology Act 2004, s 34(4)(e).

¹¹⁵ Human Assisted Reproductive Technology Act 2004, ss 34(4)(g) and 34(5).

¹¹⁶ Human Assisted Reproductive Technology Act 2004, s 27(1).

¹¹⁷ Human Assisted Reproductive Technology Act 2004, s 27(3)(b).

¹¹⁸ 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].

¹¹⁹ Ethics Committee on Assisted Reproductive Technology Terms of Reference at 5.

¹²⁰ Ethics Committee on Assisted Reproductive Technology Terms of Reference at 5.

• 5.119 First, we questioned whether the current requirements for Māori representation on ACART and ECART are sufficient and promote consistency with the Treaty and the principle of partnership. We noted that one Māori academic who shared an ao Māori perspective on surrogacy with us said “[o]ne Māori person [on ACART] cannot represent the diversity of Māori views and perspectives that exist”. In contrast, another Māori academic thought that one Māori member on 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”, preferring that the HART Act require the Māori member to be co-chair and the deputy chair position be removed.
• 5.120 Second, we noted that ECART is not required to have a member with the ability to articulate the interests of children, unlike ACART. We observed that this requirement might be considered appropriate especially if ECART approval becomes a key condition for determining legal parenthood in surrogacy arrangements, as we recommend in Chapter 6.
• 5.121 Third, we noted that fertility clinic representatives and intended parents expressed a view that ECART should include counsellors with expertise in surrogacy arrangements and a greater number of medical professionals with expertise in obstetrics and gynaecology.

Results of consultation

Improving Māori representation on ACART and ECART

• 5.122 We asked submitters whether they thought that Māori representation on ACART and/or ECART should be improved. We received 127 submissions that addressed this question. Of these submissions, 63 per cent said yes,121 nine per cent said no122 and 28 per cent selected “no view”.123
• 5.123 We also received 114 submissions that selected one or more options for improving Māori representation. These submissions expressed different views:

(a) Requiring an additional Māori member of ACART was supported by 39 per cent of submitters who answered this question.124

(b) Affirming in legislation that ECART’s membership must include at least two Māori members at all times was supported by 36 per cent of submitters who answered this question.125

¹²¹ 80 submissions comprising 69 personal submissions, 10 submissions from organisations (Advisory Committee on Assisted Reproductive Technology, Australian and New Zealand Infertility Counsellors Association, Fertility New Zealand, Fertility Plus, New Zealand College of Midwives, New Zealand Council of Trade Unions, Ngā Rangahautira, Nurse Practitioners New Zealand, Office of the Children’s Commissioner and Repromed) and 1 academic submission (Dr Anne Else).

¹²² 12 submissions comprising 11 personal submissions and 1 submission from an organisation (Ethics Committee on Assisted Reproductive Technology).

¹²³ 35 submissions comprising 32 personal submissions, 2 submissions from organisations (Federation of Women’s Health Councils Aotearoa and New Zealand Nurses Organisation) and 1 academic submission (Associate Professor Rhonda Shaw).

¹²⁴ 44 submissions comprised of 39 personal submissions, 4 submissions from organisations (Fertility Associates, New Zealand Council of Trade Unions, Office of the Children’s Commissioner and Repromed) and 1 academic submission (Adjunct Professor Ken Daniels).

¹²⁵ 41 submissions comprised of 36 personal submissions and 5 submissions from organisations (Fertility Plus, New Zealand Council of Trade Unions, New Zealand Nurses Organisation, Office of the Children’s Commissioner and Repromed).

(c) The appointment of Māori co-chairs to ACART and ECART was supported by 23 per cent of submitters who answered this question.126

(d) Another option was preferred by 10 per cent of submitters who answered this question.127 Views of these submitters were mixed. Some thought that Māori should comprise up to half of the membership of ACART and ECART, while others disagreed with any membership requirements based on ethnicity rather than specialist expertise.

(e) Finally, 28 per cent of submitters who answered this question selected “no view”.128

• 5.124 Several submitters emphasised the importance of both ECART and ACART having more than one Māori member. OCC considered that “it is not a safe practice to have only one Māori representative on a panel to hold te Tiriti partnership for Māori”. It submitted that multiple members would support continued expertise, a point also noted by Repromed, which observed that having two Māori members would allow for a Māori member to be present if the other were not able to attend due to other commitments. The New Zealand College of Midwives considered Māori representation needed to be carefully addressed and “should be a key part of transformational change”. Another personal submitter similarly submitted that “Māori represent best when they are more than one person even if they have divergent views”.
• 5.125 Ngā Rangahautira preferred the appointment of Māori co-chairs as an option to improve Māori representation, explaining:

To truly operationalise the partnership that te Tiriti envisaged, we believe it should be a legal requirement that both ECART and ACART have a Māori co-chair. The current legislative provisions dictating the representation on these committees are not strong enough to ensure that Māori are granted rangatiratanga, exercised alongside the Crown’s kāwanatanga, in this sphere. We agree the committees are quite small, so adding more Māori members may not give light to the diversity of people who enter surrogacy arrangements. We need to ensure that other perspectives such as the perspectives of the LGBTQIA+ community are represented within these committees as well. It is important to ensure, however, that Māori are granted their inherent rights as tangata whenua and also their rights under te Tiriti in this sphere. This is why requiring the Māori member on these committee’s to be the co-chair would be desirable. It would allow the other diverse perspectives of Aotearoa to be heard on these committees whilst also ensuring Māori status as tangata whenua are upheld.

• 5.126 Other submitters, including ECART, considered the current arrangements to be adequate. NZLS questioned whether there is a need for increased Māori representation given the low numbers of Māori participating in surrogacy arrangements.

Increasing other specialist expertise on ECART

• 5.127 Modifying the specialist expertise of ECART was also identified as an option to improve the ECART process. We asked submitters which options to improve the ECART process they preferred. Of the 168 submissions that addressed this question, 57 per cent

¹²⁶ 26 submissions comprised of 21 personal submissions and 5 submissions from organisations (Australian and New Zealand Infertility Counsellors Association, Fertility New Zealand, Ngā Rangahautira, Office of the Children’s Commissioner and Repromed).

¹²⁷ Comprised of 11 personal submissions.

¹²⁸ 32 submissions comprised of 31 personal submissions and 1 submission from an organisation (Federation of Women’s Health Councils Aotearoa).

supported modifying the membership of ECART to include members with counselling or medical expertise and/or members able to articulate the interests of children.129

• 5.128 Some submitters who supported this option commented on the need to increase the number of ECART members with medical expertise and to include counsellors with expertise in surrogacy arrangements. Fertility Associates noted that several Fertility Associates doctors have been members of ECART and ACART over the years, and their common feedback was that ECART should have at least two doctors plus an expert in the area of psychology, social work or fertility counselling, since many of the cases are socially and medically complex. Because ECART spends a lot of time considering the suitability of surrogates, they suggested one of the doctors should be an obstetrician or an obstetric physician. ANZICA and Repromed submitted that appointing an additional medical specialist would support ECART to manage potential conflicts of interest. Adjunct Professor Daniels, who supported counsellor representation on ECART, considered that this should not be a counsellor currently employed in one of the clinics.
• 5.129 Some submitters (including Oranga Tamariki, NZLS, MSCC and Fertility Plus) commented on the need to modify ECART’s membership to include people who represent the interests of children (as is required for ACART). Repromed, in contrast, considered that Oranga Tamariki’s involvement in parental suitability assessments meant that the interests of children are well represented and that an additional member may not be required. They observed that:

In the counsellors experience from observing ECART meetings the Committee members always place the wellbeing of the child as paramount when considering applications as per the principles of the HART Act.

• 5.130 Other suggestions for improving membership were made. NZLS highlighted the need for a range of cultural experts to be available to sit as committee members when required to ensure appropriate cultural expertise is available. MSCC preferred that ECART membership should reflect its focus on ethical considerations and did not favour ECART members having counselling or medical expertise. Some personal submitters supported membership including people with experience in surrogacy arrangements (such as intended parents, surrogates and adults born through surrogacy) and people that represent or support Aotearoa New Zealand’s diverse community, including the LGBTQI+ community.

¹²⁹ 96 submissions comprising 83 personal submissions, 11 submissions from organisations (Advisory Committee on Assisted Reproductive Technology, Australian and New Zealand Infertility Counsellors Association, Fertility Associates, Fertility New Zealand, Fertility Plus, Maternity Services Consumer Council, New Zealand Nurses Organisation, Office of the Children’s Commission, Oranga Tamariki | Ministry for Children, Repromed and Te Kāhui Ture o Aotearoa | New Zealand Law Society) and 2 academic submissions (Dr Anne Else and Adjunct Professor Ken Daniels).

RECOMMENDATION

Conclusions

• 5.131 The current membership requirements for ACART and ECART reflect the specialist nature of their functions and facilitate the consideration of complex ethical, medical and legal issues. However, it has been 18 years since the HART Act was enacted, and our review has identified a range of improvements that should be made to strengthen the knowledge, experience and skills of ACART and ECART. We note that, as a practical matter, some members may be able to provide expertise in more than one of the areas prescribed.
• 5.132 We recommend that these improvements be considered by the Government as part of a wider review of the current membership requirements under the HART Act. Our review is limited to the regulation of surrogacy, and we recognise that there may be other improvements that could be made to the current membership requirements to accommodate other functions performed by the committees. A wider review of current membership requirements would ensure any other issues and potential improvements can be considered.

Improving Māori representation

• 5.133 We recommend affirming in legislation a requirement that both ACART and ECART have a minimum of two Māori members.130 We consider that this would promote the exercise of kāwanatanga in a responsible manner. It would provide for different Māori perspectives and go some way to ensuring continuity of Māori representation at each meeting. It would also encourage greater attention being given to the proportionately low uptake of surrogacy and other forms of assisted reproductive technology by Māori (see Chapter 2) and efforts to address this (see discussion above and Chapter 10).

¹³⁰ The Māori Health Authority, contemplated by Pae Ora (Healthy Futures) Bill 2021 (85-1), will have a role in providing policy and strategy advice to the Minister on matters relevant to hauora Māori, at cl 19(1)(h). This could include a role in advising the Minister on prospective Māori appointees to the Advisory Committee on Assisted Reproductive Technology and the Ethics Committee on Assisted Reproductive Committee.

• 5.134 We have not recommended prescribing in legislation a requirement for Māori co-chairs on the committees.131 However, we acknowledge the benefits that such a model may have in recognising rangatiratanga, as noted by Ngā Rangahautira. Consideration should therefore be given to ensuring that the committees can choose to put in place a co-chair model should they wish to.

Articulating children’s interests on ECART

• 5.135 We recommend including on both ACART and ECART two members with the ability to articulate the interests of children.132 Consideration of children’s interests is a significant aspect of both committees’ roles. In relation to ECART, our recommendations above to redefine Oranga Tamariki’s role further emphasise these interests as ECART will be required to consider and weigh information received from Oranga Tamariki, and decide whether the risks associated with a surrogacy for any resulting child are justified. In relation to ACART, as the committee responsible for setting the ACART Guidelines, we consider that having at least two members with the ability to articulate the interests of children would be desirable.
• 5.136 We do not think that these members need to be an employee or representative of the Office of the Children’s Commissioner as is currently required for ACART.133 We appreciate there may be practical issues with limiting eligible candidates in this way. Social workers, lawyers and infertility counsellors may be just as capable of articulating children’s interests in assisted reproductive procedures such as surrogacy. In appointing members with the ability to articulate the interests of children, the Government should have regard to the views of those with lived experience, where practicable.

Increasing expertise in assisted reproductive procedures on ECART

• 5.137 We also recommend considering modifying the membership of ECART to require a minimum of two members with expertise in assisted reproductive procedures. Currently, ECART’s terms of reference provide for one or more members with expertise in assisted reproductive procedures. However, in practice, there may only be one such member. This member is often associated with one of the three fertility clinics that operate in Aotearoa New Zealand. This can be problematic given that committee deliberations involve the consideration of medical aspects of an application and the presence of only one member with expertise in assisted reproductive procedures may give rise to an actual or perceived conflict of interest. Improving medical expertise on ECART received broad support from organisations with an interest in the ECART process, including the fertility clinics, ANZICA and ACART. ECART also considered that this could be appropriate.

Affirming ECART membership requirements in legislation

• 5.138 Finally, the statutory provisions in the HART Act in relation to ECART’s membership are incomplete and leave important requirements to its terms of reference. Our view is that these membership requirements should be enshrined in legislation rather than in terms of

¹³¹ For an example of co-chairs prescribed in legislation see Ngati Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010, sch 4 cl 6.

¹³² 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.

¹³³ Human Assisted Reproductive Technology Act 2004, s 34(4)(g).

reference. This would affirm the significance of these areas of expertise to the performance of ECART’s functions and would align with the statutory provision made for ACART’s membership.

MONITORING AND REPORTING ON OUTCOMES

Current law

• 5.139 ECART’s functions include keeping under review any approvals previously given for the performance of assisted reproductive procedures, including, but not limited to, approvals in relation to surrogacy arrangements.134 The HART Act explains that this includes monitoring the progress of any assisted reproductive procedures performed under current approvals.135 In its submission on the Issues Paper, ECART explained that, in practice, this means that, if issues are raised by fertility clinics, these matters will come to ECART’s attention for discussion and ECART will bring issues to ACART’s attention as appropriate.
• 5.140 In terms of reporting, there is no statutory obligation on ECART to publish an annual report on its performance of its functions. The preparation of an annual report is required under ECART’s terms of reference.136 However, the last annual report available on ECART’s website at the time of writing was for the 2014–2015 year.137
• 5.141 ACART also has a role in monitoring the application and health outcomes of assisted reproductive procedures and established procedures.138 Unlike ECART, ACART is required to report annually on its progress in carrying out its functions.139 ACART explained in its annual report for 2019–2020 how it carries out its monitoring function.140 It commissions quantitative reports on outcomes of assisted reproductive treatments provided in Aotearoa New Zealand.141 It also monitors published papers on psychosocial outcomes for parties involved in assisted reproduction and resulting children and monitors ECART decisions by including summaries of applications and ECART minutes in ACART meeting agendas.